Beers v. NH Governor et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Timothy Beers
v. Civil No. 15-cv-454-SM
Jon Fouts, Roderick Greenwood,
Kelly Jardine, and John Doe #21
REPORT AND RECOMMENDATION
Before the court is plaintiff Timothy Beers’s motion to
amend the complaint (Doc. No. 49) to add the following eight
defendants to this action: Department of Corrections (“DOC”)
Commissioner William Wrenn, DOC Investigations Director Colin
Forbes, DOC Director of Training Christopher Kench, New
Hampshire Attorney General Joseph Foster, (former) New Hampshire
State Prison (“NHSP”) Warden Richard Gerry, NHSP Lt. Orlando,
and NHSP Sgt. Foncier), and an unnamed “John Doe” defendant.
Defendants object (Doc. No. 54).
In the interest of clarity, this court has bifurcated its
consideration of the motion to amend (Doc. No. 49), splitting
1The remaining defendants named in the original complaint
have been dropped from this case. See Feb. 2, 2016 Order (Doc.
No. 13) (approving Dec. 14, 2015 Report and Recommendation (Doc.
No. 7)). John Doe #2 has not been served personally in this
action, and no defendant identified as John Doe #2 has appeared.
The Order issued this date adds two new defendants, Lt. Orlando
and Sgt. Foncier.
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its disposition into this Report and Recommendation and an Order
issued this date. Addressed in this Report and Recommendation
is the motion to amend, to the extent it seeks to add claims
against Wrenn, Forbes, Kench, Foster, Gerry, and an unnamed
“John Doe” defendant. The Order issued this date grants the
motion to amend, to the extent it adds Claims 2 and 3 to this
lawsuit, as identified in that Order, against Sgt. Foncier and
Lt. Orlando.
Standard
In general, under Fed. R. Civ. P. 15(a), leave to amend is
to be “freely given,” id., “unless it would be futile, or reward
. . . undue or intended delay.” Resolution Tr. Corp. v. Gold,
30 F.3d 251, 253 (1st Cir. 1994); see also Todisco v. Verizon
Commc’ns, Inc., 497 F.3d 95, 98 (1st Cir. 2007). To assess
whether the proposed amendment is futile, this court applies the
standard for preliminary review of claims under LR 4.3(d)(1) and
28 U.S.C. § 1915A, as set forth in the December 14, 2015 Report
and Recommendation (Doc. No. 7), which was approved by the
court’s Feb. 2, 2016 Order (Doc. No. 13). Where the filing of a
proposed amendment occurs after the deadline for amending the
complaint set by the court, the plaintiff must show “good cause”
for the amendment. Steir v. Girl Scouts of the USA, 383 F.3d 7,
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12 (1st Cir. 2004).
Discussion
I. Defendants Named in Original Complaint
A. Foster, Forbes, Gerry, Kench, and Wrenn
Beers’s motion to amend, to the extent it seeks to add
Foster, Forbes, Gerry, Kench, and Wrenn as defendants, should be
denied as futile. This court previously dismissed the claims
asserted against those defendants in the original complaint, for
failure to state a claim. See Dec. 14, 2015 Report and
Recommendation (Doc. No. 7), approved by Feb. 2, 2016 Order
(Doc. No. 13). With respect to the newly asserted claims
against those individuals, the motion is based on the same
information available to Beers when he filed the original
complaint in this action. The motion to amend does not add new
facts sufficient to state claims against those defendants, and
should be denied as to those defendants.
B. John Doe
Beers’s motion also seeks leave to add a “John Doe”
defendant to this action, who, he alleges, was the officer who
ordered Beers to strip and be searched. The motion, to that
extent, should be denied as moot and futile. An unnamed
officer, referred to as “John Doe #2,” who ordered Beers to
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submit to a strip search, remains an as-yet unidentified
defendant in this case. Beers’s motion to add another unnamed
John Doe defendant, without offering any further identifying
information, at this stage of the case, should be denied.
Conclusion
For the foregoing reasons, the district judge should issue
the following order on Beers’s motion to amend (Doc. No. 49):
1. Beers’s motion to amend (Doc. No. 49) is denied, in
part, to the extent Beers seeks to add claims stated in
that motion against DOC Commissioner William Wrenn, DOC
Investigations Director Colin Forbes, DOC Director of
Training Christopher Kench, N.H. Attorney General Joseph
Foster, (former) NHSP Warden Richard Gerry, and an unnamed
“John Doe” defendant.
2. The March 2017 Report and Recommendation (“R&R”) is
approved.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
R. Civ. P. 72(b)(2). The fourteen day period may be extended
upon motion. Failure to file objections within the specified
time waives the right to appeal the district court’s order. See
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Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
_______________ ______________
Andrea K. Johnstone
United States Magistrate Judge
March 8, 2017
cc: Timothy Beers, pro se
Francis Charles Fredericks, Esq.
Lynmarie C. Cusack, Esq.
Seth Michael Zoracki, Esq.
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