Stow v. McGrath et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Weston J. Stow
v. 	Civil No. 17-cv-088-LM
Robert P. McGrath et al.
REPORT AND RECOMMENDATION
Before the court in this matter are the following motions
and other documents, filed by plaintiff Weston J. Stow, seeking
to amend his complaint to add claims and defendants to this
action:
• 	“Motion to Amend the Complaint Pursuant to Fed. R. Civ. P.
15(a)” (Doc. No. 95), “Memorandum of Law in Support of
Plaintiff’s 1-11-18 Mailed [Motion to Amend the Complaint
Pursuant to Fed. R. Civ. P. 15(a)]” (Doc. No. 97), and
“Supplemental Complaint to the Motion to Amend Complaint
(Doc. No. 95)” (Doc. No. 108);
• 	“Motion to Add the Within as an Addendum to the 1-11-18
Amended Complaint” (Doc. No. 98);
• 	“Motion to Add the Within Point of Law as an Addendum to
Plaintiff’s 1-16-2018 Memorandum of Law” (Doc. No. 106);
• 	“Motion to Amend + Supplement the 1-11-2018 Amended
Complaint [Motion to Amend the Complaint Pursuant to Fed.
R. Civ. P. 15(a)]” (Doc. No. 107);
• 	“Motion to Supplement the 01-11-18 Amended Complaint
Pursuant to Fed. R. Civ. P. Rules 15(a)(2); 15(c); 15(d)”
(Doc. No. 118); and
• 	“Motion for Court to Order Defendants to Answer All Amended
and Supplemental Complaints” (Doc. No. 119).
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In this Report and Recommendation, the court refers to these
documents, collectively, as Stow’s “motions to amend.”
Defendants have objected to the above-listed filings, see
Doc. Nos. 104, 109, and Stow, in response to the objections, has
filed “Plaintiff’s Response to Defendants’ Omnibus Objection to
Plaintiff’s Multiple Motions Seeking to Supplement the Motion to
Amend the Operative Complaint” (Doc. No. 121) and “Plaintiff’s
Response to Defendants’ Objection to Plaintiff’s Motion to Amend
Complaint Pursuant to Fed. R. Civ. P. 15(a)” (Doc. No. 122).
Background
I. 	Claims Presently in this Action
In this case, the court has previously allowed the
following claims to proceed against the defendants named in each
claim1:
1. 	Defendants Robert McGrath, Leo Lirette, and Edward
Hardy, acting individually and in conspiracy with one
another, caused Stow to be transferred from the New
Hampshire State Prison (“NHSP”) to the Northern New
Hampshire Correctional Facility (“NCF”) on March 30, 2016,
in retaliation for Stow’s administrative complaints about
medication refill procedures and inadequate ventilation on
his housing unit, causing Stow to lose his NHSP kitchen
job, to have his pay decreased, and subjecting Stow to
adverse conditions of confinement, embarrassment, and a
1In the October 13, 2017 Report and Recommendation (Doc. No.
65), the court identified the claims Stow alleged in his
complaint by number. 	See id., R&R approved by Jan. 23, 2018
Order (Doc. No. 101). 	The same claim numbers are used here to
avoid confusion. 	Elipses in the list of claims in this Report
and Recommendation represent the claims that were dismissed by
the January 23, 2018 Order (Doc. No. 101). 	See id.
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loss of dignity, when other inmates who had made similar
administrative complaints were not transferred to NCF and
did not lose their prison jobs, in violation of:
a. 	Stow’s First Amendment rights to free speech and
to petition the government for a redress of
grievances, rendering those defendants liable for
damages and injunctive relief under 42 U.S.C. § 1983;
. . .
d. 	state common law, rendering defendants liable for
damages for:
i. 	conspiracy,
. . .
iii. malfeasance in public office,
iv. 	misfeasance in public office,
v. 	negligence, and
vi. 	tortious interference with contractual
relations;
. . .
2. 	Defendant McGrath threatened Stow with bodily harm by
stating “You’ve made a big mistake, if I get a clean shot
at you I’m going to take it,” in retaliation for Stow’s
administrative complaints about medication refill
procedures and inadequate ventilation on his housing unit,
in violation of:
a. 	Stow’s First Amendment rights to free speech and
to petition the government for a redress of
grievances, rendering defendant liable for damages and
injunctive relief under 42 U.S.C. § 1983;
. . .
c. 	state common law, rendering defendant liable for
damages for:
. . .
ii. 	malfeasance in public office, and
iii. misfeasance in public office;
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. . .
5. 	Defendants Lirette and Perkins improperly denied Stow
access to the administrative grievance system by ordering
Stow not to make administrative requests or complaints
concerning Stow’s transfer to NCF and the April 2017 denial
of extended law library time, and threatened to take
disciplinary action against Stow if he did so, in
retaliation for filing administrative grievances, in
violation of:
a. 	Stow’s First Amendment rights to free speech and
to petition the government for a redress of
grievances, rendering defendants liable for damages
and injunctive relief under 42 U.S.C. § 1983;
. . .
c. 	state common law, rendering defendants liable for
damages for:
i. 	malfeasance in public office,
ii. 	misfeasance in public office, and
iii. negligence.
. . ..
The claims listed above, which have been served on, and
answered by, the defendants named therein, pertain to and arise
out of three events: a February 2016 failure of prison officials
to properly refill Stow’s medication, Stow’s subsequent transfer
to NCF, and the failure to allow Stow access to the NCF law
library in April 2017. 	No other claims have been allowed to
proceed in this action. 	Stow now seeks to amend his complaint
to add claims concerning a letter he attempted to mail out of
the prison in October 2017.
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II. 	Motions to Amend Complaint
A. 	Facts
In his motions to amend, Stow asserts that on October 25,
2017, he asked NCF case counselor/case manager Ms. Snyder, for
photocopies of a letter he had written, and attachments thereto,
that Stow was preparing to send to Roger Goodell, the
Commissioner of the National Football League (“NFL”) (“Goodell
letter”). 	Stow alleges that his letter constituted legal work
because it was written in anticipation of a lawsuit Stow
intended to file against one or more NFL players for failing to
stand during the national anthem.
Snyder, who was not the person who ordinarily provided
inmates with photocopies, called John Perkins, the law librarian
at the NHSP, to ask whether Stow could have copies of those
materials. 	Perkins asked Snyder to send him the materials so
that he could review them. 	Snyder returned the original
documents to Stow, and told Stow she would send copies of the
documents to Perkins. 	Snyder later told Stow that she had, in
fact, sent the documents to Perkins.
On October 31, 2017, in response to an Inmate Request Slip
(“IRS”) Stow had sent to Perkins, Perkins advised Stow that he
was not in possession of the materials. 	In a November 13, 2017
response to another IRS, Perkins advised Stow that the materials
went to the New Hampshire Department of Corrections (“DOC”)
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Investigations Department (“Investigations”). 	Stow, in IRSs
sent to Perkins between October 25, 2017 and November 28, 2017,
posed a number of questions to Perkins concerning his letter.
Perkins answered some, but not all, of the questions.
Dr. Anne Davis, Perkins’s supervisor at the NHSP Education
Department, received a copy of the Goodell letter on October 31,
2017. 	After she received the letter, Davis issued a
disciplinary report to Stow for four statements in the letter
that she considered to be threats Stow had made against a person
or property, in violation of DOC rules. 	Davis told Stow that
she issued the disciplinary report after conferring with
Investigations. 	Stow attempted to confirm that information with
Investigations, but was unable to do so.
In several responses to IRSs Stow sent to Davis between
November 28, 2017 and December 18, 2017, Stow posed a number of
questions to Davis concerning matters related to the Goodell
letter. 	Davis answered some, but not all, of the questions. 	In
a December 6, 2017 IRS, Stow requested that Davis terminate
Perkins’s employment, asserting that Perkins had violated state
law and DOC policies. 	Davis declined to terminate Perkins.
B. 	Claims
In his motions to amend his complaint, and related filings,
Stow seeks to assert claims related to the October 25, 2017
seizure of his letter, and the events that followed. 	Stow
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asserts claims against Perkins, who is a defendant to the claims
in this action identified above as Claims 5(a) and 5(c)(i)-(iii)
in this action, which are unrelated to the claims asserted here.
Stow also asserts claims against Davis, alleging that her
actions violated his First Amendment rights, as well as state
law and DOC policy, by subjecting him to censorship, and
retaliation for exercising his right to free speech by issuing a
disciplinary report against Stow.
Discussion
I. 	Standard
Although Stow cites Rule 15(a) of the Federal Rules of Civl
Procedure in his motions to amend, his motions to amend actually
arise under Rule 15(d). 	“Rule 15(d) affords litigants a pathway
for pleading ‘any transaction, occurrence, or event that
happened after the date of the pleading to be supplemented.’”
United States ex rel. Gadbois v. PharMerica Corp., 809 F.3d 1, 7
(1st Cir. 2015) (quoting Fed. R. Civ. P. 15(d)). 	In considering
a request to supplement a pleading under Rule 15(d), courts
generally grant such requests liberally. 	See id. 	“However,
‘while leave to permit a supplemental pleading is favored, it
cannot be used to introduce a separate, distinct and new cause
of action,’” unless “‘a relationship exists between the original
complaint and the later accruing material.’” 	Lath v. Oak Brook
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Condo. Owners’ Ass’n, No. 16-cv-463-LM, 2017 u.s. Dist. LEXIS
108428, at *8, 2017 WL 2986334, at *2 (D.N.H. July 13, 2017)
(citations omitted). 	“[W]hen the matters alleged in a
supplemental pleading have no relation to the claim originally
set forth and joinder will not promote judicial economy or the
speedy disposition of the dispute between the parties, refusal
to allow the supplemental pleading is entirely justified.” 	6A
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure § 1506 (3d ed. 2017). 	“Unrelated claims
against different defendants belong in different suits,” in part
“to ensure that prisoners pay the required filing fees,” and
that prisoners do not avoid exposure to the “three strikes”
provision of 28 U.S.C. § 1915(g). 	George v. Smith, 507 F.3d
605, 607 (7th Cir. 2007).
II. 	John Perkins
In his filings, Stow asserts that Perkins denied having
possession of the Goodell letter, told Stow that the letter went
to Investigations, and failed to answer questions Stow posed to
him in IRS forms sent in October and November 2017. 	In the
motions to amend, there are no other assertions concerning
Perkins, relating to the Goodell letter. 	Nothing in the motions
to amend indicates that Perkins ever actually had the Goodell
letter, or that if he did, he took any action with respect to
the letter. 	The motions to amend thus do not demonstrate that
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Perkins did or failed to do anything, in regard to the Goodell
letter, that prevented or inhibited the exercise of Stow’s First
Amendment rights.
The remaining claims Stow has asserted against Perkins in
the motions to amend amount to Perkins allegedly lying to Stow
and refusing to answer questions Stow posed to him, which Stow
has alleged violated his rights under state law, the state
constitution, and DOC policy. 	As previously explained in the
October 13, 2017 Report and Recommendation (Doc. No. 65) issued
in this case, there is no federal constitutional right not to be
lied to or to have prison officials follow prison policy, and no
private right of action accrues to Stow for the alleged
violations of his rights under state statutory and
constitutional law. 	Oct. 13, 2017 R&R (Doc. No. 65), at 23, 24,
26, approved by Jan. 23, 2018 Order (Doc. No. 101).
Stow’s claims against Perkins arise, if at all, under state
tort law. 	Without a federal claim to bestow original
jurisdiction on this court over the claims in the motions to
amend, the court should not exercise supplemental jurisdiction,
see 28 U.S.C. § 1367, over Stow’s claims against Perkins arising
under state tort law. 	For these reasons, the district judge
should deny Stow’s motions to amend or supplement his complaint
to assert claims against Perkins, concerning or arising out of
events related to Stow’s letter to Goodell, without prejudice to
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Stow’s ability to bring his state law claims against Perkins in
state court.
III. Dr. Anne Davis
Although Davis was named as a defendant in Stow’s original
complaint, Stow failed to assert a claim against her upon which
relief might be granted, and she was dropped from this action.
See Jan. 23, 2018 Order (Doc. No. 101) (approving Oct. 13, 2017
R&R (Doc. No. 65). 	Davis, therefore, is not presently a
defendant in this case. 	The claims asserted against Davis in
the instant motions to amend arise out of facts and events that
are unrelated to the claims in his original complaint, and are
unrelated to any of the claims presently pending in this case.
Accordingly, Stow's claims against Davis are not properly added
to this action. 	The district judge should therefore deny the
motions to amend to the extent Stow seeks to assert claims
against Davis concerning the Goodell letter, without prejudice
to Stow’s ability to bring his claims in a new action filed in
this court.
Conclusion
For the foregoing reasons, the district judge should deny
Stow’s motions to amend his complaint (Doc. Nos. 95, 98, 106,
107, 118, 119), without prejudice to Stow’s ability to bring
state law claims against Perkins in state court, or to file a
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new action in this court against Davis. 	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).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
March 	, 2018
cc: 	Weston J. Stow, pro se
Lynmarie C. Cusack, Esq.
Seth Michael Zoracki, Esq.
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