Stile v. US Marshals Service, et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
James Stile
v. Case No. 15-cv-494-SM
Strafford County Department
Of Corrections, Bruce Pelkie,
Jake Collins, Tracey Warren,
Robert Farrell, Laura Noseworthy,
and Christopher Brackett
REPORT AND RECOMMENDATION
Before the court for preliminary review, see LR 4.3(d)(1),
is document no. 54. While captioned as a complaint, that
pleading has been docketed as a motion to amend. In this Report
and Recommendation, the court will refer to document no. 54 as a
proposed complaint amendment. The defendants object (doc. no.
56). For the reasons that follow, the two claims that plaintiff
seeks to add to this case should be dismissed.
Background
This case was initiated by a 142-page complaint asserting
claims under at least ten legal theories against 32 defendants.
Four claims emerged from preliminary review: (1) a Fourteenth
Amendment due-process claim against Bruce Pelkie, Laura
Case 1:15-cv-00494-SM Document 61 Filed 08/02/17 Page 1 of 11

2
Noseworthy, and Christopher Brackett, arising from Stile’s
placement on D-Pod upon his arrival as a federal pre-trial
detainee at the Strafford County House of Corrections (“SCHC”),
which employed Pelkie (as Superintendent), Noseworthy (as a
Sergeant), and Brackett (as a Lieutenant); (2) a Fourteenth
Amendment inadequate-medical-care claim against Pelkie and
Tracey Warren, arising from their alleged denial of a
prescription medication to Stile; (3) a First Amendment free-
exercise-of-religion claim against Pelkie, Jake Collins, Robert
Farrell, and Brackett, arising from Stile’s alleged lack of
access to weekly religious services while being housed in D-Pod;
and (4) a claim under the Religious Land Use and
Institutionalized Persons Act, against the SCHC, Pelkie,
Collins, Farrell, and Brackett, also based upon Stile’s lack of
access to religious services while housed in D-Pod.
Also as a result of preliminary review, plaintiff was given
leave to file complaint amendments that: (1) identify any
federal agents associated with the United States Marshals
Service (“USMS”) who may have been responsible for his initial
placement in D-Pod at the SCHC, and allege facts that, if
proven, would render those federal agents liable for the due-
process violation described above; (2) allege facts concerning a
Case 1:15-cv-00494-SM Document 61 Filed 08/02/17 Page 2 of 11

3
claim that Stile’s First Amendment rights were violated by the
manner in which SCHC officials handled his mail; and (3) allege
facts concerning a Fourteenth Amendment conditions-of-
confinement claim based upon an alleged deprivation of drinking
water during a time when his cell was flooded.1 All three claims
were addressed in the May 9, 2016, Report and Recommendation
(“R. & R.”) on preliminary review, document no. 6. The mail-
handling and drinking-water claims were addressed in the Order
directing service, document no. 7, that was issued in
conjunction with the R. & R. The housing-placement claim was
inadvertently omitted from the Order, but as the R. & R. was
approved, see doc. no. 14, plaintiff’s leave to file a complaint
amendment covers all three claims.
In the Order directing service, Stile was given until June
10, 2016, to file an amended complaint correcting the
deficiencies in pleading his mail-handling and drinking-water
claims. That deadline was extended, and on August 26, 2016,
plaintiff filed a motion to amend his complaint to allege facts
concerning his mail-handling claim, but not his drinking-water
1 The court also dismissed the claims in paragraphs 42
through 169 of the complaint, “without prejudice to plaintiff’s
ability to file separate actions that comply with Federal Rules
of Civil Procedure 8, 19, and 20 . . . .” R. & R. (doc. no. 6)
25.
Case 1:15-cv-00494-SM Document 61 Filed 08/02/17 Page 3 of 11

4
or housing-assignment claims. The motion was denied. See doc.
nos. 44 & 55. On October 27, 2016, this court gave plaintiff
until November 18, 2016, “to file a complaint amendment adding
new allegations relating to his initial placement in [D-Pod] in
January 2013, and naming individual USMS agents as new
defendants.” Order (doc. no. 42) 2. On November 15, 2016, this
court granted plaintiff’s motion to stay all proceedings. On
December 6, 2016, the stay was lifted. On January 27, 2017,
plaintiff filed th proposed complaint amendment that is now
before the court for preliminary review.
The Legal Standard
Because Stile is appearing pro se, the court construes his
pleadings liberally. See Erickson v. Pardus, 551 U.S. 89, 94
(2007). As a general matter, under Rule 15(a) of the Federal
Rules of Civil Procedure, leave to amend should be “freely
given.” However, leave to amend may be denied if the proposed
complaint amendment would be futile because it “fails to state a
plausible claim for relief,” Privitera v. Curren (In re Curren),
855 F.3d 19, 28 (1st Cir. 2017), which is the same standard that
governs preliminary review, see 28 U.S.C. §§ 1915(e)(2)(B)(ii) &
1915A(b)(1).
Case 1:15-cv-00494-SM Document 61 Filed 08/02/17 Page 4 of 11

5
Discussion
Unlike document no. 28, a one-page filing in which
plaintiff sought to amend his mail-handling claim, document no.
54 is a 104-page complaint that includes 172 paragraphs of
supporting facts and 74 paragraphs of claims for relief. This
“new” complaint consists largely of plaintiff’s original
complaint, including all of the claims that were dismissed, with
some new allegations added in. While the court has granted
plaintiff leave to amend his drinking-water claim and his
housing-placement claim, it has not granted him leave to amend
any of his other claims. Accordingly, to the extent that
plaintiff is seeking to reassert those claims in document no.
54, the district judge should dismiss them for the same reasons
and on the same terms described in the May 9, 2016, R. & R.
Accordingly, in the balance of this section, the court deals
individually with each of the two remaining claims that
plaintiff has been given leave to amend.
I. Drinking-Water Claim
In the Order directing service, the court gave Stile a
deadline for amending his drinking-water claim and specified
four sets of factual allegations that would be necessary to
state a claim upon which relief can be granted. In his proposed
Case 1:15-cv-00494-SM Document 61 Filed 08/02/17 Page 5 of 11

6
complaint amendment, plaintiff identifies Lieutenant Lee as the
SCHC officer who provided him with only eight ounces of water
per day, which was one of the four facts that he was directed to
allege. He did not, however: (1) identify the SCHC officers who
knew that he had been given only eight ounces of water per day;
(2) “[s]tate with specificity the facts upon which [he] asserts
that defendants knew about [his] lack of access to drinking
water,” Order (doc. no. 7) 4; or (3) state facts concerning his
access to other fluids and the amount of time he was without
access to fluids.
In their objection to Stile’s proposed complaint amendment,
defendants argue that leave to amend should be denied because
plaintiff’s pleading is untimely and because it does not correct
the deficiencies in his original complaint. They are correct on
both counts.
In the Order directing service, this court set a deadline
for Stile to move to amend his drinking-water claim. In the
motion to amend that he filed in August of 2016, he raised only
his mail-handling claim. See R. & R. (doc. no. 44) 3 n.2. He
did not file the proposed complaint amendment that is currently
before the court until late January of 2017. That cannot
possibly count as a timely response to the Order directing
Case 1:15-cv-00494-SM Document 61 Filed 08/02/17 Page 6 of 11

7
service, and plaintiff has not replied to defendants’ objection.
Necessarily, plaintiff offers no argument for the timeliness of
the proposed amendment of his drinking-water claim. Because it
is grossly untimely, plaintiff’s request to amend his drinking-
water claim should be denied.
However, even if it were timely, plaintiff’s request to
amend his drinking-water claim would be subject to denial
because his proposed complaint amendment does not state a claim
upon which relief can be granted. In the Order directing
service, the court identified four sets of facts plaintiff
needed to allege in order to state a plausible claim for relief.
While his proposed complaint amendment identifies an SCHC
officer who gave him the amount of drinking water alleged in the
complaint, it does not address any of the three other sets of
facts described in the Order. Accordingly, even if Stile’s
proposed complaint amendment were timely as to the drinking-
water claim, that claim should still be dismissed for failing to
satisfy the applicable pleading standard.
II. Housing-Placement Claim
A housing-placement claim against Pelkie, Noseworthy, and
Brackett survived preliminary review. In addition to asserting
that claim against Pelkie, Noseworthy, and Brackett, plaintiff
Case 1:15-cv-00494-SM Document 61 Filed 08/02/17 Page 7 of 11

8
also alleged that those three defendants all told him that his
placement in D-Pod had been directed by the USMS, and on that
basis, he named the USMS as a defendant. However, for reasons
that the court need not revisit, plaintiff’s housing-placement
claim was dismissed as to the USMS. That dismissal, however,
was without prejudice to Stile’s
Fil[ing] a complaint amendment identifying any federal
agents who may be responsible for Stile’s initial
placement in D-Pod, and stating all relevant factual
allegations concerning what those federal agents did
that could render them potentially liable under Bivens
[v. Six Unknown Named Fed. Narc. Agents, 403 U.S. 388
(1971)].
R. & R. (doc. no. 6) 4.
In his proposed complaint amendment, Stile devotes two
paragraphs to asserting a housing-placement claim against three
federal agents:
Defendant United States Marshal Service employees
Alex Patnode, Dean Knightly, [and] Randy Ossinger did
confine the Plaintiff James Stile as a pre-trial
detainee at the Strafford County House of Corrections
pursuant to a detention order issued by the United
States District Court of the District of Maine on
January 15, 2013 until February 13, 2015 in which
timeframe, the events described in the complaint
occurred. The “USMS” employee[s] [were] responsible
for the care and safety and medical care of the
Plaintiff during this period of incarceration at
“SCHOC”. “USMS” employees Dean Knightly, Randy
Ossinger, [and] Alex Patnode [are] sued in [their]
individual and official capacities.
. . . .
Case 1:15-cv-00494-SM Document 61 Filed 08/02/17 Page 8 of 11

9
From January 15, 2013 until February 25, 2013,
Plaintiff was held in oppressive conditions in
segregation as a maximum security prisoner without due
process in violation of Plaintiff’s Fourteenth
Amendment right to procedural due process. This
deprived the Plaintiff of state established liberty
interests, and caused Plaintiff both physical and
emotional suffering. Plaintiff was deprived of well
established Constitutional standards by this
oppressive imprisonment that amounted to
discriminatory acts without due process.
Am. Compl. (doc. no. 54) ¶¶ 3, 33.
There is an argument to be made that plaintiff’s proposed
complaint amendment is not timely as to his housing-placement
claim, given that: (1) the case was stayed with three days
remaining before the deadline for filing a complaint amendment;
and (2) the proposed complaint amendment was filed approximately
six weeks after the stay was lifted. But the court need not
reach that issue, because even if it were to deem the amendment
timely, it does not state a claim upon which relief can be
granted.
Plaintiff was specifically directed in the May 9, 2016, R.
& R. to “stat[e] all relevant factual allegations concerning
what [Knightly, Ossinger, and Patnode] did that could render
them potentially liable under Bivens.” Doc. no. 6, at 5.
Similarly, in its order of October 27, 2016, this court extended
“the deadline for Stile to file a complaint amendment adding new
Case 1:15-cv-00494-SM Document 61 Filed 08/02/17 Page 9 of 11

10
allegations relating to his initial placement in [D-Pod] in
January 2013, and naming individual USMS agents as new
defendants.” Doc. no. 42, at 2. While the proposed complaint
amendment complaint names Knightly, Ossinger, and Patnode as
defendants, it does not add any new factual allegations
concerning the involvement of those defendants in his placement
in D-Pod. To the contrary, unlike the original complaint, which
alleged that the USMS directed his placement in D-Pod, the
proposed complaint amendment, even when construed most
liberally, see Erickson, 551 U.S. at 94, makes no allegations
about any conduct by Knightly, Ossinger, or Patnode that, if
proven, would subject them to liability for a due-process
violation in a Bivens action. Because the proposed complaint
amendment fails to state a claim upon which relief can be
granted against Knightly, Ossinger, or Patnode, plaintiff’s
housing-placement claim against those three defendants should be
dismissed.
Conclusion
For the reasons detailed above, both the drinking-water
claim and the housing-placement claim against Knightly,
Ossinger, and Patnode that are asserted in the proposed
Case 1:15-cv-00494-SM Document 61 Filed 08/02/17 Page 10 of 11

11
complaint amendment, document no. 54, should be dismissed, and
to the extent that pleading is being treated as a motion to
amend, it should be denied.
Any objection to this Report and Recommendation must be
filed within 14 days of receipt of this notice. See Fed. R.
Civ. P. 72(b)(2). Failure to file an objection within the
specified time waives the right to appeal the district court’s
order. See United States v. De Jesús-Viera, 655 F.3d 52, 57
(1st Cir. 2011); Sch. Union No. 37 v. United Nat’l Ins. Co., 617
F.3d 554, 564 (1st Cir. 2010) (only issues fairly raised by
objections to magistrate judge’s report are subject to review by
district court; issues not preserved by such objection are
precluded on appeal).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
August 2, 2017
cc: James Stile, pro se
Corey Belobrow, Esq.
Case 1:15-cv-00494-SM Document 61 Filed 08/02/17 Page 11 of 11