Strahan v. McNamara et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Richard Maximus Strahan,
Plaintiff
v. 	Case No. 22-cv-391-SM-TSM
Opinion No. 2023 DNH 098
William McNamara, Tracy Birmingham,
Steven Lee, William Breault, and
Rene Kelley,
Defendants
O R D E R
Richard Strahan, proceeding in forma pauperis and pro se,
filed a civil rights complaint against various people, alleging
that they acted both individually and in concert to unlawfully
bar him from using UNH transportation services, and to defame
him. 	See Complaint (document no. 1). 	Presently before the
court is Strahan’s motion to amend his complaint (document no.
49). 	In addition to restating his original claims, Strahan
seeks to add Chief Judge McCafferty of this District as a
defendant, based on decisions she made in this and other suits
Strahan has brought in this court. 	That motion to amend is
denied.
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Legal Standard
A party may amend its pleading once as a matter of course
within twenty-one days after the pleading is served or within
twenty-one days after service of a responsive pleading or
motion. 	Fed. R. Civ. P. 15(a)(1). 	Otherwise, a party may amend
its pleading only with the consent of the opposing party or with
the court’s leave. 	Fed. R. Civ. P. 15(a)(2). 	Such leave will
be freely given when “justice so requires,” id., but the Court
need not “mindlessly grant every request for leave to amend.”
Mulder v. Kohl's Dep't Stores, Inc., 865 F.3d 17, 20 (1st Cir.
2017) (quoting Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 58
(1st Cir. 2006)). 	Instead, the Court may deny leave to amend
when it concludes, based on the totality of the circumstances,
that “the request is characterized by ‘undue delay, bad faith,
futility, [or] the absence of due diligence on the movant's
part.’” 	Id. (alteration in original) (quoting Nikitine v.
Wilmington Tr. Co., 715 F.3d 388, 389 (1st Cir. 2013)).
Additionally, leave to amend may be denied “if the proposed
amendment ‘would serve no useful purpose.’” 	Calderón-Serra v.
Wilmington Tr. Co., 715 F.3d 14, 19 (1st Cir. 2013) (quoting
Aponte-Torres, 445 F.3d at 58). 	“Whether a proposed amendment
is futile is ‘gauged by reference to the liberal criteria of
Federal Rule of Civil Procedure 12(b)(6).’” 	Amyndas Pharms.,
S.A. v. Zealand Pharma A/S, 48 F.4th 18, 40 (1st Cir. 2022)
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(quoting Juárez v. Select Portfolio Servicing, Inc., 708 F.3d
269, 276 (1st Cir. 2013)). 	As such, a motion to amend should be
granted “if the amended complaint ‘contain[s] sufficient factual
matter, accepted as true, to “state a claim to relief that is
plausible on its face.”’” 	Id. (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)); see also
Rife v. One W. Bank, F.S.B., 873 F.3d 17, 21 (1st Cir. 2017)
(“‘Futility’ means that the complaint, as amended, would fail to
state a claim upon which relief could be granted.” (quoting
Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir.
1996))).
Discussion
This is not Strahan’s first suit against judges of this
court. 	Chief Judge McConnell of the District of Rhode Island
recently dismissed Strahan’s suit against Chief Judge
McCafferty.1 	See Strahan v. McCafferty, et al., No. 1:23-cv-297-
JJM-LDA, Order of Dismissal (document no. 12) (D.N.H. Aug. 4,
2023). 	Among other things, Strahan’s complaint was found to
have been “frivolous and malicious” and “obviously retaliatory.”
Id. at 5. 	The court also concluded that Strahan’s suit failed
1 	The case was referred to the District of Rhode Island
after all the judges of this court recused.
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to state any viable claims and noted that the judicial
defendants were absolutely immune from the relief sought.
Strahan’s proposed amended complaint in this case is no
different.
In his proposed amended complaint, Strahan first alleges
that Judge McCafferty “is refusing to allow him” to prosecute
this lawsuit because it has been “placed in permanent stasis.”
Id. at 3. 	Based on the court record, that assertion is
demonstrably false and fails to state a claim for which relief
can be granted.
The original complaint was filed on September 30, 2022
(document no. 1). 	Judge McCafferty denied, without prejudice,
Strahan’s motion for a temporary restraining order less than a
week later, (document no. 7), and after preliminary review the
same day, directed the United States Marshal Service to serve
the complaint on the defendants (document no. 8). 	On October
21, 2022, Strahan re-filed his TRO request (document no. 9),
which the court resolved expeditiously, denying it on October
24, 2022 (document no. 14). 	On October 21, 2022, after the
defendants were served, Strahan again moved for temporary
injunctive relief (document no. 20). 	The defendants filed
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objections and Strahan replied to those objections. 	The court
denied Strahan’s motion on November 17, 2022 (document no. 34).
Strahan filed a Notice of Appeal of the order denying his
motion for injunctive relief the same day that order was issued
(document no. 35). 	On November 28, 2022, Judge McCafferty
stayed the case, including consideration of pending motions to
dismiss, because the issue on appeal – the scope of New
Hampshire’s criminal trespass statute – was “likely to inform
the future handling of the case in this court.” (document no.
42). 	Strahan did not seek reconsideration of the stay order.
On appeal, rather than contesting the merits of Judge
McCafferty’s order, Strahan failed to file a brief and was
defaulted. 	On May 8, 2023, the Court of Appeals dismissed his
appeal. 	Strahan v. McNamara, et al., No. 22-1930, (1st Cir. May
8, 2023). 	The Court of Appeals issued its mandate on May 31,
2023 and, a week later, Strahan sought Judge McCafferty’s
recusal. 	After Judge McCafferty denied the motion to recuse
(document no. 47), Strahan filed the instant motion to amend,
whereupon Judge McCafferty recused herself from the case. 	See
Endorsed Order of Recusal (July 13, 2023).
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This procedural history is recounted simply to demonstrate
that, contrary to Strahan’s claim of “permanent stasis,” the
official court record unequivocally discloses that his case was
expeditiously processed at every turn. 	Delays occasioned by
Strahan’s own requests for additional appellate briefing time,
or his failure to file an appellate brief, or the current motion
to amend are of his own making. 	In short, the foundational
claims upon which the proposed amended complaint are based are
demonstrably false – something Strahan clearly understands.
Strahan’s proposed claims against Judge McCafferty are also
futile because they are barred by the doctrine of judicial
immunity. 	As Judge McConnell noted in Strahan’s prior suit (and
as Strahan is now well-aware):
It is an 	axiom 	of 	black 	letter 	law 	that 	when 	a 	judge
carries 	out 	traditional adjudicatory 	functions, 	he
or 	she 	has 	absolute 	immunity 	for 	those 	actions.
Judicial 	immunity 	is 	appropriate 	unless 	a 	judge 	is
carrying 	out 	an 	activity 	that 	is not adjudicatory.
To 	determine 	if 	the 	judge 	is 	entitled 	to 	the 	full
protection 	of 	the doctrine’s 	deflector 	shield, 	the
Supreme Court 	has 	assessed 	whether 	the 	judge’s 	act
was one normally performed by a judge, and whether
the parties were dealing with the 	judge 	in 	his 	or 	her
judicial 	capacity. 	Further, absolute judicial
immunity means not just immunity from damages, but
immunity from suit altogether.
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Strahan v. McCafferty, No. 23-cv-297-JJM-LDA, Order of Dismissal
(D.N.H. Aug. 4, 2023) (citations and internal punctuation
omitted).
Here, in addition to his claim of “permanent stasis,” Mr.
Strahan cites orders Judge McCafferty entered in a different
case, in which she limited his contact with the clerk’s office
after his repeated acts of abusive conduct toward court
personnel, despite being warned of consequences for his
behavior. 	It cannot seriously be disputed that all of Judge
McCafferty’s actions were taken in her “adjudicatory capacity.”
Even adjudicatory actions that are shown to be retaliatory
or taken in bad faith are immune from suit. 	See Zenon, 924 F.3d
at 616 (“The breadth of the protection is fulsome, shielding
judges even when their actions are malicious, corrupt, mistaken,
or taken in bad faith . . . .”). 	So, again, the proposed
amended complaint is futile, in addition to being proffered in
bad faith.
Conclusion
Strahan’s proposed amended complaint is plainly frivolous
and malicious, advancing claims based upon demonstrably false
assertions of fact against a judicial officer Strahan well knows
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to be absolutely immune from such claims. 	And, like his earlier
effort to sue Chief Judge McCafferty, his proposed amended
complaint is undeniably retaliatory. 	It was plainly filed for
an improper purpose – that is, in an effort to effect Chief
Judge McCafferty’s recusal from presiding over this case after
she first denied Strahan’s motion to recuse.
Strahan’s motion to amend his complaint (document no. 49)
is denied.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
August 15, 2023
cc: 	Richard M. Strahan, pro se
Counsel of Record
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