Griffin v. Manchester, NH Parole Office et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John R. Griffin, Jr.
v. Civil No. 16-cv-438-JL
Jennifer Walters, Irena Catovic,
Kevin Valenti, Mark Hastbacka,
and Kent Smith1
REPORT AND RECOMMENDATION ON DOC. NOS. 28, 46, 48
Before the court, and addressed in this Report and
Recommendation (“R&R”), are three motions filed by plaintiff,
John R. Griffin, Jr.:
 two motions seeing to join Merrimack County, the Office of
the New Hampshire Public Defender (“NHPD”), and Attorney
Eleanor Spottswood as new defendants (Doc. Nos. 28, 48) to
this action; and
 a motion seeking to charge defendants with a violation of
18 U.S.C. § 241 (Doc. No. 46).
Defendants have not responded to these motions. The motions
have been referred to the magistrate judge for preliminary
review, pursuant to LR 4.3(d)(1) and 28 U.S.C. § 1915A.
1Defendants in this case, other than those listed in the
caption of this Order, have been dropped from this action. See
Apr. 4, 2017 Order (Doc. No. 47); Feb. 24, 2017 Order (Doc. No.
32).
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Background2
In March 2016, Griffin was paroled to the community from
the sentence imposed on his underlying state conviction. While
on parole, in May 2016, Griffin mailed a letter (“May 2016
Letter”), addressed to a prosecutor at the Hillsborough County
Attorney’s Office, regarding a state habeas proceeding he was
litigating. The prosecutor’s supervisor, Attorney Kent Smith,
considered the May 2016 Letter to be threatening, and referred
the matter to the FBI for investigation.
While on parole, Griffin had lived at a residence called,
“Helping Hands,” until he was evicted on May 10, 2016. New
Hampshire Department of Corrections (“DOC”) parole officers,
unaware of the eviction, unsuccessfully attempted to find
Griffin at Helping Hands on May 19, 2016. The Adult Parole
Board (“APB”) issued a warrant for Griffin’s arrest for a parole
violation on May 27, 2016, and parole officers arrested Griffin
pursuant to that warrant.
Griffin appeared personally and through appointed counsel
at a June 21, 2016 parole revocation hearing. Parole Officer
Kevin Valenti also appeared at that hearing. The APB revoked
2The following summary of pertinent background facts is
derived from the January 25, 2017 R&R (Doc. No. 19), approved by
the February 24, 2017 Order (Doc. No. 32), and from supplemental
facts alleged by Griffin in Document Nos. 28 and 48.
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Griffin’s parole upon finding that he had failed to be “of good
behavior,” N.H. Admin. R. Par 401.02(b)(7), and that he had not
obtained his parole officer’s permission before changing his
residence, id. 401.20(b)(3).
Griffin filed this action to challenge, as retaliatory and
invalid, his parole revocation, and the investigations and
arrest underlying the revocation, relating to the May 2016
Letter. This court conducted a preliminary review of Griffin’s
complaint and allowed a First Amendment retaliation claim for
damages to proceed in this action, under 42 U.S.C. § 1983,
against multiple defendants, as follows:
Assistant Hillsborough County Attorney Kent Smith; DOC
Parole Officers Jennifer Walters, Irena Catovic, and Kevin
Valenti; and FBI Agent Mark Hastbacka initiated
investigations, an arrest, and/or parole revocation
proceedings against Griffin, in retaliation for Griffin’s
writing and mailing the May 2016 Letter, which was conduct
protected by the First Amendment.
See Jan. 25, 2017 R&R (Doc. No. 19) (“January 25 R&R”), approved
by Feb. 24, 2017 Order (Doc. No. 32) (“February 24 Order”).
Discussion
I. Motion to Join New Defendants (Doc. Nos. 28, 48)
A. Standard
Federal Rule of Civil Procedure 15(a)(1) provides that a
party may amend its pleading once as a matter of course, prior
to twenty-one days after service of a responsive pleading.
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Where the proposed amendment seeks to join a new party, that
request is “‘technically governed by Rule 21, which provides
that the court may at any time, on just terms, add or drop a
party.’” Gigunda Grp., Inc. v. Creative Collective Grp., No.
15-cv-104-LM, 2015 DNH 209, 2015 WL 6872281, at *1, 2015 U.S.
Dist. LEXIS 151771, at *4 (D.N.H. Nov. 9, 2015) (citation
omitted).
Plaintiff filed the motion to join new defendants and
claims (Doc. No. 28) after this court had directed that
defendants be served, but before any defendant had filed a
responsive pleading. This court need not decide whether new
defendants could be added at that time through an amendment to
the complaint filed as of right, pursuant to Fed. R. Civ. P.
15(a)(1),3 as this court is authorized to conduct a preliminary
3“Most courts have held that . . . an amendment changing
parties requires leave of court even though made at a time when
Rule 15 indicates it could be done as of course.” 7 Charles A.
Wright, Arthur R. Miller et al., Fed. Prac. & Proc. Civ. § 1688
& n.9 (3d ed.) (citing cases). The rationale for that result is
that Rule 21 is the more specific rule governing such
circumstances. See id. Other authorities, however, including
courts in the Tenth and Fourth Circuits, afford a plaintiff an
absolute right to join new parties through a complaint
amendment, so long as no responsive pleading has been filed, and
the plaintiff retains the ability to file an amended complaint
as of right; Rule 15(a)(1) is deemed to be the more specific
rule in that circumstance. See, e.g., Galustian v. Peter, 591
F.3d 724, 730, (4th Cir. 2010); U.S. ex rel. Precision Co. v.
Koch Indus., Inc., 31 F.3d 1015, 1019 (10th Cir. 1994); see also
6 Charles A. Wright, Arthur R. Miller et al., Fed. Prac. & Proc.
Civ. § 1479 (3d ed.) (favoring result in cases that allow
joinder of new defendants via amended pleadings filed as of
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review of any complaint amendment filed by Griffin in this case,
including the allegations set forth in Document No. 28, pursuant
to LR 4.3(d), 28 U.S.C. § 1915A, and 28 U.S.C. § 1915(e)(2).
The standard applied in that preliminary review is set forth in
the January 25 R&R (Doc. No. 19), at 6-7.
B. Non-State Actors
In Document Nos. 28 and 46, plaintiff asserts federal
constitutional claims against two non-state actors, Attorney
Eleanor Spottswood, the public defender appointed to represent
Griffin before the APB, and her employer, the NHPD. Plaintiff
asserts this claim pursuant to 42 U.S.C. § 1983, which provides
a cause of action to those whose federal constitutional rights
have been violated by a defendant acting under color of state
law.
In general, a “public defender does not act under color of
state law when performing a lawyer’s traditional functions as
counsel to a defendant in a criminal proceeding.” Polk Cnty. v.
Dodson, 454 U.S. 312, 325 (1981) (“public defender”). A public
defender can be held to have engaged in state action for
purposes of § 1983 only under limited circumstances, none of
which are present here. See Georgia v. McCollum, 505 U.S. 42,
right, without leave of court, before any responsive pleadings
have been filed).
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54 (1992) (describing circumstances under which public defender
could be deemed to be state actor for purposes of § 1983).
Plaintiff’s allegations regarding a conspiracy between his
appointed counsel, the NHPD, and federal and state agents are
speculative and conclusory. Stripped of legal conclusions,
Document Nos. 28 and 46 fail to plead facts suggesting that
either Griffin’s appointed counsel or the NHPD engaged in joint
action with government officials for purposes of establishing
liability under 42 U.S.C. § 1983. Therefore, Griffin’s
assertions relating to Spottswood or the NHPD do not state a
claim upon which relief can be granted, and those claims are
properly dismissed from this action.
C. Merrimack County
Plaintiff asserts that Merrimack County is properly named a
defendant to his § 1983 claims arising from the conduct of
Attorney Spottswood in appearing as his appointed counsel in the
APB proceedings. Plaintiff’s motion is based on his assumption
that the NHPD is a county agency. Neither Attorney Spottswood
nor the NHPD, however, are agents of Merrimack County, and the
County itself is not alleged to have taken any action that could
give rise to liability under § 1983 in this action.
Accordingly, Merrimack County is not properly joined as a
defendant to this action, and should be dropped from this case.
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II. Motion to Charge under 18 U.S.C. § 241 (Doc. No. 46)
The motion to charge defendants with violating 18 U.S.C.
§ 241 (Doc. No. 46) is construed to be a motion to amend the
complaint to add criminal charges to this case. Griffin does
not have a protected interest or right to have alleged
wrongdoers investigated or prosecuted. Cf. Linda R.S. v.
Richard D., 410 U.S. 614, 619 (1973) (“a private citizen lacks a
judicially cognizable interest in the prosecution or
nonprosecution of another”). The criminal statute cited by
Griffin, 18 U.S.C. § 241, does not provide for a private right
of action. See Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989).
The decision to charge defendants with criminal conduct under 18
U.S.C. § 241 is a discretionary decision that is committed to
the United States in its prosecutorial capacity. See Cok, 876
F.2d at 2. Accordingly, the district judge should deny
Griffin’s motion to charge defendants under 18 U.S.C. § 241
(Doc. No. 46). Such claims are not properly litigated here.
Conclusion
For the foregoing reasons, the district judge should deny
the motions seeking to add new defendants (Doc. Nos. 28, 48) and
the motion seeking to charge defendants under 18 U.S.C. § 241
(Doc. No. 46). The court should: dismiss the claims charging
any defendant with violations of 18 U.S.C. § 241, and dismiss
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all claims asserted against Attorney Eleanor Spottswood, the
NHPD, and Merrimack County.
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 specific written objections to the
Report and Recommendation 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); Fed. R.
Civ. P. 72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
August 7, 2017
cc: John R. Griffin, Jr., pro se
Francis Charles Fredericks, Esq.
John A. Curran, Esq.
Robert J. Rabuck, Esq.
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