Waite v. Hoyt et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Richard A. Waite
v. Civil No. 22-cv-071-SE-AJ
Chaplain D. Hoyt et al.
REPORT AND RECOMMENDATION
New Hampshire Department of Corrections (“NHDOC”) prisoner Richard A. Waite filed
this action against the Northern New Hampshire Correctional Facility (“NCF”) Warden Corey
Riendeau, the NHDOC Commissioner, NCF Chaplain Dana Hoyt, and other members of the
NHDOC Religious Review Committee. Before the court is plaintiff’s motion to add a new count
or claim (Doc. No. 92). That motion is properly denied, as none of plaintiff’s new allegations
states a claim upon which relief can be granted, as explained more fully below.
Background
The claims remaining in this lawsuit relate to plaintiff’s religious rights and implicate
issues pertinent to his mental health and physical health. Claims 5(a)-(b) and 6, for example,
assert that defendants’ policies, practices, acts, or omissions caused or contributed to plaintiff’s
gastrointestinal distress. Defendants in their Answer asserted a defense under the Prison
Litigation Reform Act (“PLRA”), contending that plaintiff failed to exhaust his administrative
remedies.
This court’s preliminary pretrial scheduling order in this case ordered defendants, without
awaiting a discovery request, to “produce to plaintiff all pertinent grievance records, relating to
the claims that remain in this case, numbered here as Claims 1(a)-(b), 4(a)-(b), 5(a)-(b), 6, and
7(a)-(c),” and further clarified that, “depending on the claim at issue, pertinent grievance records
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may include inmate request slips and responses, medical request slips and responses, grievances
and grievance responses, and Religious Review Committee (“RRC”) proposals and responses.”
June 10, 2025 Order (Doc. No. 82), at 3-4 & n.1. The purpose of that court-ordered disclosure
was to facilitate the disposition of defendants’ PLRA exhaustion defense.
In his motion to add new counts or claims (Doc. No. 92), plaintiff seeks to add new
claims to this lawsuit and to join new defendants, arising from defendants’ disclosure of 200
pages of plaintiff’s medical and mental health records to plaintiff, as part of their 2000-page
court-ordered production of grievance records. None of those records have been submitted for
this court’s review.
In particular, plaintiff seeks to add new claims under the HIPAA Privacy Rule and N.H.
Rev. Stat. Ann. (“RSA”) § 332-I:6, relating to defendants’ disclosure of his health records to
their counsel, Attorney Michael DeGrandis, who then produced those records to plaintiff.
Plaintiff also seeks to add an access-to-the-courts claim, relating to what he characterizes as
defendants’ refusal to release (unspecified) “information” to him, so he can file an administrative
complaint with a federal agency relating to the scope of that production. The new defendants
plaintiff seeks to join are Attorney DeGrandis and the NHDOC medical records custodian who
released plaintiff’s medical and mental health records to Attorney DeGrandis.
Legal Standard
Plaintiff’s request to add new claims and join new parties must satisfy Rule 15’s
requirements. See Fed. R. Civ. P. 15; see also Gigunda Grp., Inc. v. Creative Collective Grp.,
No. 15-CV-104-LM, 2015 WL 6872281, at *1, 2015 U.S. Dist. LEXIS 151771, at *4 (D.N.H.
Nov. 9, 2015) (Rule 15(a)’s “standard of liberality applies” to motions to amend and join new
parties). Leave to amend a pleading should be freely given when justice so requires, Fed. R. Civ.
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P. 15(a). Adequate reasons for denial of leave to amend include futility of the proposed
amendment. See Glassman v. Computervision Corp., 90 F.3d 617, 622 (1st Cir. 1996).
“Normally, [futility] means that ‘the complaint, as amended, would fail to state a claim upon
which relief could be granted.’” Id. (citation omitted). To determine whether plaintiff has stated
a claim upon which relief can be granted, the court strips away the legal conclusions in the
complaint, accepts plaintiff’s factual allegations as true, construes reasonable inferences in
plaintiff’s favor, and then determines “whether the factual allegations . . . set forth a plausible
claim upon which relief may be granted.” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71, 75
(1st Cir. 2014) (quotation marks and citation omitted). As plaintiff is pro se, his pleadings are
afforded a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
Discussion
Plaintiff cites the HIPAA Privacy Rule in connection with his motion to add a new count
or claim. The HIPAA Privacy Rule authorizes defendants in their official capacities to use and
disclose plaintiff’s medical records in accordance with this court’s orders in this case. See 45
C.F.R. § 164.512(e)(1)(i) (“covered entity may disclose protected health information in the
course of any judicial . . . proceeding . . . [i]n response to an order of a court . . . provided that
the covered entity discloses only the protected health information expressly authorized by such
order); see also id. § 164.512(k)(5)(ii) (“correctional institution may use protected health
information of individuals who are inmates for any purpose for which such protected health
information may be disclosed”).
Even if the production of plaintiff’s health records back to plaintiff could be
characterized as a disclosure that exceeded the scope of the June 10, 2025 court-ordered
production of his grievance records, plaintiff cannot proceed on a claimed violation of HIPAA.
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There is no private right of action available to litigate a claimed violation of the HIPAA Privacy
Rule. See Miller v. Nichols, 586 F.3d 53, 59-60 (1st Cir. 2009). Accordingly, no claim for relief
may be founded on any alleged violation of the HIPAA Privacy Rule in this case.
Plaintiff also asserts that a state law, RSA § 332-I:6, provides him with a cause of action
for damages. That state law, however, is inapplicable here, as it authorizes an aggrieved person
to file a civil action for damages in circumstances involving an unauthorized disclosure of
personal health records for marketing or fundraising. See RSA §§ 332-I:4, 332-I:5, 332-I:6.
Defendants’ production of plaintiff’s medical and mental health records to plaintiff in this
lawsuit does not involve marketing or fundraising. Accordingly, plaintiff’s motion to add a
claim based on that state law is properly denied as futile.
Plaintiff also seeks to add a claim for relief under 42 U.S.C. § 1983 for an alleged
violation of his right of access to the courts, arising from what he describes as defendants’
refusal to grant him access to unspecified “information” to prepare an administrative complaint
about the disclosures of his health records. To state an access to the courts claim, a prisoner
must show that he was actually injured in his ability to pursue a nonfrivolous claim in a post-
conviction proceeding or prison conditions lawsuit. See Lewis v. Casey, 518 U.S. 343, 351-52
(1996). Waite has not pleaded any facts suggesting that he has been actually injured or impeded
in his ability to initiate or litigate any nonfrivolous claim in Document 92. Accordingly, the
district judge should deny the motion to add an access-to-the-courts claim to this lawsuit.
Plaintiff also seeks to sanction defendants’ counsel for what plaintiff believes must have
been a “lie” about the scope of the court-ordered production. That request is unfounded. As
Document No. 92 fails to state any claim upon which relief can be granted and otherwise
warrants none of the relief requested, the district judge should deny that motion (Doc. No. 92).
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Conclusion
For the foregoing reasons, the district judge should deny plaintiff’s motion to add a new
count or claim (Doc. No. 92). 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
March 19, 2026
cc: Richard A. Waite, pro se
Nathan W. Kenison-Marvin, Esq.
Michael P. DeGrandis, Esq.
Shawna P. Bentley, Esq.
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