1:22-cv-00071•Waite v. Hoyt et al
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE Richard A. Waite v. Civil No. 22-cv-071-SE-AJ Chaplain D. Hoyt et al. REPORT AND RECOMMENDATION New Hampshire Department of Corrections (“NHDOC”) prisoner Richard A. Waite filed this action against the Northern New Hampshire Correctional Facility (“NCF”) Warden Corey Riendeau, the NHDOC Commissioner, NCF Chaplain Dana Hoyt, and other members of the NHDOC Religious Review Committee. Before the court is plaintiff’s motion to add a new count or claim (Doc. No. 92). That motion is properly denied, as none of plaintiff’s new allegations states a claim upon which relief can be granted, as explained more fully below. Background The claims remaining in this lawsuit relate to plaintiff’s religious rights and implicate issues pertinent to his mental health and physical health. Claims 5(a)-(b) and 6, for example, assert that defendants’ policies, practices, acts, or omissions caused or contributed to plaintiff’s gastrointestinal distress. Defendants in their Answer asserted a defense under the Prison Litigation Reform Act (“PLRA”), contending that plaintiff failed to exhaust his administrative remedies. This court’s preliminary pretrial scheduling order in this case ordered defendants, without awaiting a discovery request, to “produce to plaintiff all pertinent grievance records, relating to the claims that remain in this case, numbered here as Claims 1(a)-(b), 4(a)-(b), 5(a)-(b), 6, and 7(a)-(c),” and further clarified that, “depending on the claim at issue, pertinent grievance records Case 1:22-cv-00071-SE-AJ Document 110 Filed 03/19/26 Page 1 of 5
2 may include inmate request slips and responses, medical request slips and responses, grievances and grievance responses, and Religious Review Committee (“RRC”) proposals and responses.” June 10, 2025 Order (Doc. No. 82), at 3-4 & n.1. The purpose of that court-ordered disclosure was to facilitate the disposition of defendants’ PLRA exhaustion defense. In his motion to add new counts or claims (Doc. No. 92), plaintiff seeks to add new claims to this lawsuit and to join new defendants, arising from defendants’ disclosure of 200 pages of plaintiff’s medical and mental health records to plaintiff, as part of their 2000-page court-ordered production of grievance records. None of those records have been submitted for this court’s review. In particular, plaintiff seeks to add new claims under the HIPAA Privacy Rule and N.H. Rev. Stat. Ann. (“RSA”) § 332-I:6, relating to defendants’ disclosure of his health records to their counsel, Attorney Michael DeGrandis, who then produced those records to plaintiff. Plaintiff also seeks to add an access-to-the-courts claim, relating to what he characterizes as defendants’ refusal to release (unspecified) “information” to him, so he can file an administrative complaint with a federal agency relating to the scope of that production. The new defendants plaintiff seeks to join are Attorney DeGrandis and the NHDOC medical records custodian who released plaintiff’s medical and mental health records to Attorney DeGrandis. Legal Standard Plaintiff’s request to add new claims and join new parties must satisfy Rule 15’s requirements. See Fed. R. Civ. P. 15; see also Gigunda Grp., Inc. v. Creative Collective Grp., No. 15-CV-104-LM, 2015 WL 6872281, at *1, 2015 U.S. Dist. LEXIS 151771, at *4 (D.N.H. Nov. 9, 2015) (Rule 15(a)’s “standard of liberality applies” to motions to amend and join new parties). Leave to amend a pleading should be freely given when justice so requires, Fed. R. Civ. Case 1:22-cv-00071-SE-AJ Document 110 Filed 03/19/26 Page 2 of 5
3 P. 15(a). Adequate reasons for denial of leave to amend include futility of the proposed amendment. See Glassman v. Computervision Corp., 90 F.3d 617, 622 (1st Cir. 1996). “Normally, [futility] means that ‘the complaint, as amended, would fail to state a claim upon which relief could be granted.’” Id. (citation omitted). To determine whether plaintiff has stated a claim upon which relief can be granted, the court strips away the legal conclusions in the complaint, accepts plaintiff’s factual allegations as true, construes reasonable inferences in plaintiff’s favor, and then determines “whether the factual allegations . . . set forth a plausible claim upon which relief may be granted.” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71, 75 (1st Cir. 2014) (quotation marks and citation omitted). As plaintiff is pro se, his pleadings are afforded a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). Discussion Plaintiff cites the HIPAA Privacy Rule in connection with his motion to add a new count or claim. The HIPAA Privacy Rule authorizes defendants in their official capacities to use and disclose plaintiff’s medical records in accordance with this court’s orders in this case. See 45 C.F.R. § 164.512(e)(1)(i) (“covered entity may disclose protected health information in the course of any judicial . . . proceeding . . . [i]n response to an order of a court . . . provided that the covered entity discloses only the protected health information expressly authorized by such order); see also id. § 164.512(k)(5)(ii) (“correctional institution may use protected health information of individuals who are inmates for any purpose for which such protected health information may be disclosed”). Even if the production of plaintiff’s health records back to plaintiff could be characterized as a disclosure that exceeded the scope of the June 10, 2025 court-ordered production of his grievance records, plaintiff cannot proceed on a claimed violation of HIPAA. Case 1:22-cv-00071-SE-AJ Document 110 Filed 03/19/26 Page 3 of 5
4 There is no private right of action available to litigate a claimed violation of the HIPAA Privacy Rule. See Miller v. Nichols, 586 F.3d 53, 59-60 (1st Cir. 2009). Accordingly, no claim for relief may be founded on any alleged violation of the HIPAA Privacy Rule in this case. Plaintiff also asserts that a state law, RSA § 332-I:6, provides him with a cause of action for damages. That state law, however, is inapplicable here, as it authorizes an aggrieved person to file a civil action for damages in circumstances involving an unauthorized disclosure of personal health records for marketing or fundraising. See RSA §§ 332-I:4, 332-I:5, 332-I:6. Defendants’ production of plaintiff’s medical and mental health records to plaintiff in this lawsuit does not involve marketing or fundraising. Accordingly, plaintiff’s motion to add a claim based on that state law is properly denied as futile. Plaintiff also seeks to add a claim for relief under 42 U.S.C. § 1983 for an alleged violation of his right of access to the courts, arising from what he describes as defendants’ refusal to grant him access to unspecified “information” to prepare an administrative complaint about the disclosures of his health records. To state an access to the courts claim, a prisoner must show that he was actually injured in his ability to pursue a nonfrivolous claim in a post- conviction proceeding or prison conditions lawsuit. See Lewis v. Casey, 518 U.S. 343, 351-52 (1996). Waite has not pleaded any facts suggesting that he has been actually injured or impeded in his ability to initiate or litigate any nonfrivolous claim in Document 92. Accordingly, the district judge should deny the motion to add an access-to-the-courts claim to this lawsuit. Plaintiff also seeks to sanction defendants’ counsel for what plaintiff believes must have been a “lie” about the scope of the court-ordered production. That request is unfounded. As Document No. 92 fails to state any claim upon which relief can be granted and otherwise warrants none of the relief requested, the district judge should deny that motion (Doc. No. 92). Case 1:22-cv-00071-SE-AJ Document 110 Filed 03/19/26 Page 4 of 5
5 Conclusion For the foregoing reasons, the district judge should deny plaintiff’s motion to add a new count or claim (Doc. No. 92). 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 Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016). ______________________________ Andrea K. Johnstone United States Magistrate Judge March 19, 2026 cc: Richard A. Waite, pro se Nathan W. Kenison-Marvin, Esq. Michael P. DeGrandis, Esq. Shawna P. Bentley, Esq. Case 1:22-cv-00071-SE-AJ Document 110 Filed 03/19/26 Page 5 of 5
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