Hart v. Goulette et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Kenneth Hannibal Hart
v. Civil No. 16-cv-028-PB
Ryan Goulette, Page Kimbal, Eric Barbaro,
Paul Cascio, Michael Dube, and Dr. Linda
DeLorey1
REPORT AND RECOMMENDATION
New Hampshire State Prison (“NHSP”) inmate Kenneth Hart has
filed a motion to add new defendants and new claims to this
action (Doc. No. 45). The motion is before the court, pursuant
to LR 4.3(d)(1) and 28 U.S.C. §§ 1915A and 1915(e)(2).
Standard
A motion seeking to add new defendants and new claims to an
action is, in general, evaluated using the “same standard of
liberality” that applies to motions that seek only to add new
claims. See Garcia v. Pancho Villa’s of Huntington Vill., Inc.,
268 F.R.D. 160, 165 (E.D.N.Y. 2010). In general, under Fed. R.
1The remaining defendants named in Hart’s pleadings (doc.
nos. 1-3 and 9), have been dismissed. See Aug. 31, 2016 Order
(Doc. No. 18) (approving July 22, 2016 R&R (Doc. No. 11)).
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Civ. P. 15(a), leave to amend the claims in a case is to be
“freely given.” Leave to amend may be denied, however, if the
proposed complaint amendment would be futile. See Todisco v.
Verizon Commc’ns, Inc., 497 F.3d 95, 98 (1st Cir. 2007);
Resolution Tr. Corp. v. Gold, 30 F.3d 251, 253 (1st Cir. 1994).
To make an assessment as to the futility of a proposed
amendment, this court applies the standard for preliminary
review set forth in the July 22, 2016 Report and Recommendation
(Doc. No. 11) (“R&R”), which the court approved on August 31,
2016. See Order (Doc. No. 18).
Background
Pending in this case is an Eighth Amendment claim alleging
that Hart’s Eighth Amendment right to dental care in prison was
violated by Dr. Linda DeLorey. That claim, previously
enumerated as Claim 14(a), alleges:
Dr. Linda DeLorey ordered and undertook the drilling and
filling of a healthy tooth, intending to cause Hart pain
and injury, with deliberate indifference to a substantial
risk of serious harm to Hart.
In the motion to add new parties and claims, Hart asserts that
Dr. DeLorey’s dental assistants banded together with her to
cause injury to Hart’s healthy tooth, and that the same dental
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assistant that helped Dr. DeLorey drill the tooth at issue also
prepared a faulty, antiquated partial denture for Hart.
Moreover, Hart asserts that dental staff x-rayed his teeth once
in 2016, and intended in December 2016 to x-ray Hart again,
knowing that if he is subjected to repeated, continuous x-rays,
he will develop cancer.
Discussion
“[T]o prove an Eighth Amendment violation, a prisoner must
satisfy both of two prongs: (1) an objective prong that requires
proof of a serious medical need, and (2) a subjective prong that
mandates a showing of prison administrators' deliberate
indifference to that need.” Kosilek v. Spencer, 774 F.3d 63, 82
(1st Cir. 2014), cert. denied, 135 S. Ct. 2059 (2015). Stripped
of legal conclusions, Hart’s allegations, regarding Dr.
DeLorey’s assistants, relating to x-rays, their assistance to
Dr. DeLorey, and the fabrication of partial dentures, all fail
to state an Eighth Amendment claim. Accordingly, the district
judge should deny the motion (Doc. No. 45), which seeks to add
dental assistants as defendants to Claim 14(a), and to add
Eighth Amendment claims relating to x-rays and partial dentures.
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Conclusion
For the foregoing reasons, the district judge should deny
Hart’s motion to add parties and claims (Doc. No. 45). 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
January 4, 2017
cc: Kenneth Hannibal Hart, pro se
Elizabeth Mulholland, Esq.
Seth Michael Zoracki, Esq.
Judith F. Albright, Esq.
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