Martinko v. NH Department of Corrections et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
David M. Martinko
v. Civil No. 22-cv-238-LM-AJ
N.H. Department of Corrections Commissioner et al.
REPORT AND RECOMMENDATION
Before the court in this civil rights action is self-represented plaintiff David Martinko’s
motion (Doc. No. 130) to join Deborah Hussey, Joanne Azonabor, Kristin Zaleski, Heather
MacFarland, and John Kostandin as new defendants to this lawsuit, in their individual and
official capacities. Martinko proposes to replace previously unnamed New Hampshire State
Prison (“NHSP”) kitchen employees, identified in the Complaint as “John Does 1-10,” with
those five individuals. Defendants object. See Doc. No. 132. As explained below, the district
judge should deny plaintiff’s motion.1
Background
Plaintiff alleges that his religion requires him to avoid certain foods, including shellfish,
pork products, and food that has been in contact with pork. Martinko relies on the NHSP kitchen
to make him meals that satisfy his religious diet. Martinko presently receives the NHSP
kitchen’s religious diet known as the “no-pork” diet, the same diet he received when he filed his
Complaint in this case. For a period of time while this case was pending in 2024 Martinko
switched to the kosher diet, but then he switched back to the no-pork diet in November 2024.
1 At the December 10, 2025 scheduling conference in this case, the undersigned
magistrate judge denied plaintiff’s motion (Doc. No. 130) in a bench ruling. The court has
vacated that ruling, and this Report and Recommendation is issued instead.
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In his initial Complaint (Doc. No. 1), in the filings deemed to be Complaint Addenda
(Doc. Nos. 7, 32-1), and in his pending motion for a preliminary injunction (Doc. No. 94),
Martinko alleges that, on a number of occasions, the NHSP kitchen has served him food that
does not comply with his religious dietary restrictions, and he has lost confidence in the prison’s
ability to ensure his meals are pork-free. He attributes the kitchen’s failure to provide him with a
consistent, compliant no-pork diet to kitchen practices, relating to food preparation, storage, and
meal service, which he believes increase the risk of pork entering his meal trays.
In its preliminary review of the initial pleadings under 28 U.S.C. § 1915A, this court
allowed plaintiff to proceed on claims for damages under 42 U.S.C. § 1983 against the named
defendants,2 in their individual capacities, for alleged violations of his rights under the First
Amendment’s Free Exercise Clause. This court also allowed Martinko’s religious diet claims for
injunctive relief to proceed against the same named defendants, in their official capacities, under
§ 1983 for alleged First Amendment violations, and for violations of the Religious Land Use and
Incarcerated Persons Act (“RLUIPA”). Then, the court dismissed all of plaintiff’s claims for
damages under RLUIPA for reasons stated in the April 3, 2023 Report and Recommendation
(Doc. No. 37), which the district judge approved.3 See May 9, 2023 Order (Doc. No. 44).
2 The defendants who have been served in this matter (in both their individual and official
capacities) (hereinafter, the “named defendants”) are: (former) New Hampshire Department of
Corrections (“DOC”) Commissioner Helen Hanks; New Hampshire State Prison (“NHSP”)
Warden Michelle Edmark; DOC Administrator of Logistics Jonathan Hanson, DOC Assistant
Administrator of Logistics Jeff Smith, NHSP Kitchen Supervisor Robert Heath, (former) NHSP
Kitchen Supervisor Todd Sheehan, NHSP Chef Supervisor III Heather Cornock, NHSP Chef
Hans Peter Bossert, NHSP Chef Jacob Post, NHSP Chef Jonathan Matteau, NHSP Chef Marcus
Taylor, NHSP Administrator C.J. Boulet, (former) NHSP Chef Elizabeth Mosqueda-Smith, and
NHSP Dietician Todd Popovich.
3 Presently before the Supreme Court is a case concerning whether a RLUIPA claim for
damages may proceed against individual state prison employees in their individual capacities.
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The named defendants moved for summary judgment on all of the RLUIPA and free
exercise claims remaining in this case, arguing that the specific occasions plaintiff pointed to as
involving alleged violations of his no-pork diet amounted to isolated instances, manifesting, at
worst, negligence, which did not substantially burden his religious diet. Viewing the affidavits
and other documentary evidence in the court’s record in a light most favorable to Martinko, the
district judge denied defendants’ summary judgment motion, concluding that
a reasonable jury could find that Martinko’s meals on the “no-pork” diet were
“often, if not routinely, contaminated with pork products” as a result of routine
prison practices (i.e., a “de facto policy” to ignore contamination) such that
defendants are not entitled to summary judgment on the basis of the availability to
Martinko of the no-pork diet.
Sept. 24, 2024 Order (Doc. No. 80), at 1.
The Complaint asserts the same RLUIPA and Free Exercise Clause claims against
another set of NHSP kitchen employees whose names are not listed in the Complaint and who
have not been served. Plaintiff asserted in the Complaint that he planned to identify them
through the discovery process. The Complaint assigns them the fictious collective name, “John
Does 1-10,” and describes them as NHSP employees who served meals to Martinko that did not
comply with his religious diet, or as supervisors who failed to implement or enforce procedures
to prevent their subordinates from serving him such meals.
In the instant motion, plaintiff seeks leave to join Deborah Hussey, Joanne Azonabor,
Kristin Zaleski, Heather MacFarland, and John Kostandin as new defendants. He clarified at the
December 10, 2025 scheduling conference that he considers Hussey to be one of the original
John Does, and that his proposed claims against her arise from her acts or omissions relating to
See Landor v. La. Dep’t of Corr., No. 23-1197 (U.S., cert. granted June 23, 2025). Plaintiff has
moved to continue certain deadlines and the trial in this case, pending a ruling in Landor. See
Doc. No. 143. Defendants’ deadline for responding to that motion is January 7, 2026.
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her handling of a sign advising prisoners to request the “no-pork alternative,” during a time
frame Martinko estimated to be 2016 to 2018. His statements at the December 10, 2025
scheduling conference also clarified that his claims against the remaining four individuals he
proposed to join as defendants relate to their acts and omissions undertaken as chefs and kitchen
supervisors at some point after he filed this case.
The named defendants, through counsel, object to Plaintiff’s motion. They argue that the
proposed joinder is unfairly prejudicial, as they already deposed plaintiff; that individuals hired
to work in the NHSP kitchen since the Complaint was filed cannot be the same people as the
John Does who were already working there before this case was filed; and that plaintiff’s
allegations as to the newly-hired individuals are too generalized and nonspecific to be allowed to
proceed.
Legal Standard
The November 26, 2024 scheduling order in this case (Doc. No. 87) established January
10, 2025 as the deadline for amendments to the pleadings and for joinder of new parties. Those
deadlines expired approximately eight months before plaintiff filed the instant motion.
If a motion to amend or join new defendants is filed after expiration of the scheduling
order’s deadlines, the movant must satisfy Rule 16(b)'s good cause standard. See Fed. R. Civ. P.
16(b); Baez v. Baymark Detoxification Servs., Inc., 123 F.4th 62, 67 (1st Cir. 2024). “Properly
deployed, the elevated good cause standard puts teeth into Rule 16(b) scheduling orders and
‘preserves the integrity and effectiveness of [such] scheduling orders.’” U.S. ex rel. D'Agostino
v. EV3, Inc., 802 F.3d 188, 194 (1st Cir. 2015).
In addition to showing good cause, a plaintiff seeking to amend the Complaint to join
new defendants must also satisfy the Rule 15 standard. See Amyndas Pharms., S.A. v. Zealand
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Pharma A/S, 48 F.4th 18, 40 (1st Cir. 2022) (citing Fed. R. Civ. P. 15). Adequate reasons for the
denial of leave to amend under Rule 15 include undue delay, bad faith, dilatory motive, futility
of the proposed amendment, and prejudice. 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). If it is apparent
from a plaintiff’s pleadings that a proposed new claim would be time-barred, and there is no
reason to suspect the existence of an exception to the statute of limitations, the motion to amend
may also be denied as futile. See Howell v. Dep't of Justice, No. 1:23-cv-13156-NT, 2024 WL
6031915, at *2 n.2, 2024 U.S. Dist. LEXIS 245798, at *5 n.2 (D. Mass. Mar. 11, 2024), R&R
approved, 2024 U.S. Dist. LEXIS 246283 (D. Mass. Mar. 28, 2024); see also Smart v. Strafford
Cty., No. 22-cv-436-PB, 2024 DNH 066, 2024 WL 3860071, at *3, 2024 U.S. Dist. LEXIS
149176, at *7 (D.N.H. Aug. 16, 2024) (“An amended complaint is futile if the relevant statute of
limitations has lapsed.” (citations omitted)).
Discussion
I. Deborah Hussey
A. First Amendment Claims under 42 U.S.C. § 1983
There is a three-year statute of limitations for claims in New Hampshire that arise under
42 U.S.C. § 1983. See Gorelik v. Costin, 605 F.3d 118, 121 (1st Cir. 2010); see also N.H. Rev.
Stat. Ann. § 508:4. The limitations period for the § 1983 claims in this case accrued when
Martinko knew, or had reason to know of the injury. See Gorelik, 605 F.3d at 122. A plaintiff
is deemed to know or have reason to know “at the time of the act itself and not at the point that
the harmful consequences are felt.” Id. (internal quotation marks omitted).
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Plaintiff’s motion seeks to substitute Hussey for one of the John Does. He explained at
the December 10, 2025 scheduling conference that all of his claims against Hussey arose from
her pre-Complaint conduct as a kitchen employee, which he stated occurred sometime between
2016 and 2018.
Plaintiff filed this action in June 2022. The 2016-2018 time frame places his proposed
§ 1983 claims against Hussey outside of the three-year statute of limitations, making them
untimely and rendering the motion to amend futile in that regard.
Even if plaintiff’s First Amendment claims against Hussey arose from acts or omissions
which occurred after 2018, but before he filed this action, his claims would still be untimely.
There are limited circumstances, specified in subsections (A) and (C) of Rule 15(c)(1), which
can effectively extend the statute of limitations to allow claims against newly-named defendants
to “relate back” to the original complaint’s filing date. It is plaintiff’s burden, however, to
establish that those prerequisites are satisfied. See Graham v. Church, No. 14-cv-171-LM, 2015
DNH 013, 2015 WL 247910, at *4, 2015 U.S. Dist. LEXIS 6094, at *9 (D.N.H. Jan. 20, 2015).
Plaintiff has failed to meet that burden here.
Rule 15(c)(1)(A) allows for “relation back” only if the law that provides the applicable
statute of limitations allows relation back. Fed. R. Civ. P. 15(c)(1)(A). New Hampshire law
provides the statute of limitations for plaintiff's § 1983 claims. To satisfy New Hampshire’s
relation-back doctrine, Martinko must show that Hussey received actual notice of his claims
against her within three years of her alleged acts or omissions underlying those claims:
When an amendment seeks to substitute a defendant after the statute of limitations
has expired, the New Hampshire Supreme Court has observed that both potential
injustice to the plaintiff and potential prejudice to the intended defendant exist. In
cases of this nature, the prejudice inquiry typically focuses on “whether the
intended defendant received notice before the statute of limitations expired.”
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Murphy v. Strafford Cty., No. 19-cv-1162-PB, 2022 DNH 007, 2022 WL 124673, at *3, 2022
U.S. Dist. LEXIS 7097, at *7 (D.N.H. Jan. 13, 2022) (citations omitted).
Plaintiff asserts that it was up to defendants or their counsel to let the new hires know
about his lawsuit. See Plf.’s Reply (“Defendants were obligated to inform these new-hires [i.e.,
Zaleski, MacFarland, Konstantin, Azonabor] of the Plaintiff’s pending lawsuit against their
positions, so it is not a matter of surprise.”). He has not alleged, however, and nothing in this
court’s record suggests, that Hussey (or any newly hired employee) in fact received actual notice
of Martinko’s claims at any time, let alone within three years of the pre-Complaint time period
when Hussey is alleged to have engaged in the acts or omissions at issue. Rule 15(c)(1)(A),
therefore, does not allow for relation back of the First Amendment claims against Hussey.
That leaves only Rule 15(c)(1)(C) as a potential avenue for relation back of those claims.
And that rule is also inapplicable here.
[Rule 15(c)(1)(C)] serves to allow a plaintiff to correct a “misnomer or
misidentification.” To that end, Rule 15(c)(1)(C) requires the plaintiff to show
that he made “a mistake concerning the proper party’s identity.” The plaintiff’s
lack of knowledge of the intended defendant’s identity is not a mistake in identity
under Rule 15(c).
Murphy, 2022 WL 124673, at *3, 2022 U.S. Dist. LEXIS 7097, at *7 (citations omitted).
Martinko asserted at the December 10, 2025 scheduling conference that he did not name
Hussey sooner because he did not know her name. Accordingly, this is not a case where the
plaintiff made a mistake regarding a defendant’s identity. Rule 15(c)(1)(C) does not allow for
relation back when a lack of knowledge was the reason for not naming the defendant sooner.
Martinko has failed to meet his burden to demonstrate that the relation back doctrine
allows him to substitute Hussey for any of the John Doe defendants in this case, to avoid a
statute of limitations problem. Moreover, no other exception to the statute of limitations appears
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to apply to the claims Martinko wants to assert against Hussey, for her pre-Complaint acts or
omissions. Accordingly, the district judge should deny plaintiff’s motion to join Hussey as a
new defendant to his First Amendment claims under § 1983.
B. RLUIPA
1. Statute of Limitations
RLUIPA claims are subject to a four-year statute of limitations. See 28 U.S.C.
§ 1658(a).4 Martinko’s RLUIPA claims against Hussey, like his § 1983 claims, accrued when he
knew or had reason to know of the injury that is the basis of the action. See El-Shaddai v.
Stainer, No. 14-cv-9313 GHK(JC), 2016 WL 7261230, at *22, 2016 U.S. Dist. LEXIS 173755,
at *65 (C.D. Cal. Dec. 13, 2016) (citations omitted), aff’d sub nom. Wilkerson v. Stainer, 704 F.
App’x 689 (9th Cir. 2017).
The longer statute of limitations for RLUIPA claims does not change the outcome of
plaintiff’s motion to the extent it seeks to join Hussey as a defendant. Plaintiff has not pleaded
facts to show that Hussey’s acts or omissions occurred within four years of his September 2025
motion to join her as a defendant. For the same reasons stated with respect to the § 1983 claims
against Hussey, neither the relation back doctrine under Rule 15(c)(1), nor any other exception to
the statute of limitations appears to make Martinko’s analogous RLUIPA claims timely against
Hussey.
2. Law of the Case
There is an additional reason to deny the motion to add RLUIPA claims against Hussey
in this case. This court previously dismissed all of plaintiff’s RLUIPA claims for damages, and
4 28 U.S.C. § 1658(a) provides, in pertinent part: “Except as otherwise provided by law, a
civil action arising under an Act of Congress enacted after the date of the enactment of this
section may not be commenced later than 4 years after the cause of action accrues.”
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that ruling is the law of this case. This court may ultimately revisit that ruling, sua sponte or
upon motion, once the Court issues its decision in Landor v. La. Dep’t of Corr., No. 23-1197
(U.S., cert. granted June 23, 2025), but until that time, RLUIPA does not provide a cause of
action for any individual capacity claim in this case, including those which Martinko seeks to
assert against Hussey. Accordingly, the district judge should deny as futile the motion to join
Hussey as a new defendant to this action.
II. Joanne Azonabor, Kristin Zaleski, Heather MacFarland, and John Kostandin
A. Good Cause and Prejudicial Delay
Rule 16(b)’s good cause standard is measured by focusing primarily on the movant’s
diligence.
The "good cause" standard focuses on both the conduct of the moving party and the
prejudice, if any, to the nonmovant. In the decisional calculus, the moving
party's diligence or lack of diligence serves as the "dominant criterion."
Miceli v. JetBlue Airways Corp., 914 F.3d 73, 86 (1st Cir. 2019). The burden of demonstrating
good cause rests with Martinko as the moving party. Parker v. Columbia Pictures Indus., 204
F.3d 326, 340 (2d Cir. 2000).
From plaintiff’s explanation of how he found out Hussey’s name, and from the exhibits
to the parties’ pleadings, it appears that plaintiff may have asked other prisoners, or other NHSP
employees for help in obtaining all or part of the names of Zaleski, MacFarland, Azonabor, and
Konstandin, before obtaining their full names from defendants’ counsel through an exchange of
letters. See, e.g., Doc. No. 132, at 10 (July 17, 2025 Ltr. to Atty. McKenna (asking for full
names for Supervisor I Joanne A., Chef John K., Chef Kristen, and Chef Little Heather)); see
also Doc. No. 132, at 4 (counsel’s Sept. 5, 2025 response to plaintiff provided their full names).
In his September 2025 motion (Doc. No. 130), Martinko outlined the steps he took to
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obtain the names of the John Doe defendants through the discovery process, and he offered two
reasons for not moving sooner seek their joinder: (1) defendants’ February 25, 2025 response to
his document production request, which noted the lack of records responsive to plaintiff’s
discovery requests, seeking lists of those who worked on specific NHSP food service lines on 84
particular dates or specified mealtimes between July 9, 2018 and November 23, 2024, and (2)
counsel’s July 8, 2025 response to Martinko’s follow-up questions, indicating the defendants did
not have timesheets listing the names of those who worked on particular food service lines on
those dates.
The record before this court indicates that Martinko possessed some information,
including the first names, job titles, and last initials for Azonabor and Konstandin in January
2025, the first name and job title of Zaleski in March 2025, and similar information in December
2024 and May 2025 for MacFarland.5 He appears to have obtained that information outside of
the discovery process.
Plaintiff has not explained why he did not use the information that he possessed regarding
Azonabor’s and Konstandin’s names beginning in January 2025; the information he possessed in
March 2025 as to Zaleski; or MacFarland in in December 2024 or May 2025 to file a motion to
name them sooner. Since Martinko has not filed a proposed complaint amendment stating what
5 Plaintiff’s notes dated Dec. 21, 2024 and Apr. 26, 2025 appear to record the first name
and job title of MacFarland, whom he called, “Chef little Heather” and “Chef Heather” on those
dates. See Doc. No. 110-1, at 80; Doc. No. 110-1, at 82. Plaintiff received an Inmate Request
Slip (“IRS”) response on January 14, 2025, listing “John K.” and “Joanne A.,” as chefs at the
January 10, 2025 dinner when Martinko believes he received pork meatballs. See Doc. No. 94-1,
at 4; see also Doc. No. 110-1, at 61. In addition, plaintiff sent an IRS, addressed to Chef John
K., dated Feb. 18, 2025, regarding an incident on Jan. 14, 2025. Doc. No. 110-1, at 33. Those
individuals appear to be Joanne Azonabor and John Konstantin. Plaintiff also addressed a March
11, 2025 IRS to “Chef Kristin,” regarding an incident on that date. See Doc. No. 110-1, at 23.
Plaintiff’s May 25, 2025 witness list for the preliminary injunction hearing lists “Chef (little)
Heather” and “Chef Kristen” as witnesses; they appear to be MacFarland and Zaleski.
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he alleges each of those individuals did or did not do that violated his religious diet, when those
alleged violations occurred, and when or how he found out that Azonabor, Konstandin, Zaleski,
and MacFarland were involved in those matters, he has failed to show that he acted with
reasonable diligence in seeking to join them no sooner than September 2025. Martinko has thus
failed to show good cause for his delay in naming those individuals, and, accordingly, the district
judge should deny his motion to join them as new defendants (Doc. No. 130) on that basis.
The late stage of this case presents an additional ground for denying the motion to join
the newly-hired individuals as new defendants. The case has proceeded since 2022 without
them. Dispositive motions and three preliminary injunction motions have been briefed or
resolved without their participation as parties, including the presently pending motion for a
preliminary injunction (Doc. No. 94), which involved a three-day evidentiary hearing at which
witnesses testified (including Zaleski).
At the December 10, 2025 scheduling conference, plaintiff argued in favor of granting his
motion. The parties agreed, however, that the case will be ready for trial in May 2026, after one
more round of summary judgment motions in January 2026, without the need for additional
discovery, if new defendants are not joined. In the interest of resolving the dispute that presently
exists justly and expeditiously, without further undue delay, in accordance with the matters
discussed at that scheduling conference, the district judge should deny plaintiff’s motion to add
new defendants.
B. Futility
1. Section 1983 Claims
In a § 1983 case, “each Government official, his or her title notwithstanding, is only
liable for his or her own misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). “To be
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liable, a ‘defendant must have personally participated in, encouraged, condoned, or acquiesced in
rights-violating conduct.’” Echavarria v. Roach, 565 F. Supp. 3d 51, 77 (D. Mass. 2021).
This court previously determined that there is documentary evidence in this court’s
record, construed in a light most favorable to Martinko, from which a reasonable jury might find
that the current defendants implemented a de facto policy of ignoring pork contamination of the
NHSP kitchen’s no-pork religious diet. Martinko argues here that the “new-hires” have
continued the same practices that violate his religious diet. He maintains it would be sensible to
join Azonabor, Zaleski, MacFarland, and Kostandin as new defendants, so that he will not need
to file a similar lawsuit against each of them, relying upon the same evidence and witnesses.
One problem with plaintiff’s motion is that his pleadings do not assert sufficient specific
facts regarding what Azonabor, Zaleski, MacFarland, and Kostandin did or did not do, during
what time period, and at what frequency, since he filed this case, to show that any of them
personally engaged in non-negligent conduct, on more than isolated occasions, in their individual
capacity, in a manner substantially burdening his religious diet. Plaintiff’s claims for relief
against those four individuals are insufficiently pleaded to warrant joining them as defendants to
his § 1983 claims.
2. RLUIPA Claims
This court previously dismissed all of plaintiff’s RLUIPA damages claims. Based on the
law of this case, which this court may revisit as appropriate after a ruling is issued in the
Supreme Court’s Landor case, RLUIPA does not provide a cause of action for any individual
capacity claims. Accordingly, the district judge should deny as futile the motion to join
Azonabor, Zaleski, MacFarland, and Kostandin as defendants to his RLUIPA claims in their
individual capacities at this time.
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3. Injunctive Relief
Plaintiff’s injunctive relief claims under RLUIPA and § 1983 are presently proceeding
against all of the named defendants in their official capacities, as agents of the State of New
Hampshire. Adding new claims for the same relief against Zaleski, MacFarland, Azonabor, and
Konstandin in their official capacities would appear to make no difference in this case, as all of
them, in their official capacities, are also agents of the State of New Hampshire. And plaintiff
has not pleaded any facts regarding the acts or omissions of these specific individuals which he
does not also allege with respect to the other named defendants. See, e.g., Plf.’s Reply (Doc. No.
134), at 1 (“The claims have not changed though people holding those positions have.”). To that
extent, he does not appear to need to add any new official capacity claims against any of the
newly-hired kitchen staff to obtain all necessary and appropriate injunctive or declaratory relief
to which he may be entitled, if he is successful in this lawsuit. Accordingly, the district judge
should deny Martinko’s motion to add such official capacity claims as duplicative or redundant
of the official capacity claims already proceeding against the named defendants in their official
capacities as NHSP chefs or supervisors.
Conclusion
For the foregoing reasons, the district judge should deny plaintiff’s motion to join
Deborah Hussey, Joanne Azonabor, Kristin Zaleski, Heather MacFarland, and John Kostandin as
new defendants in their individual and official capacities, or to substitute them for the John Does
in the Complaint (Doc. No. 130). 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
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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 5, 2026
cc: David M. Martinko, pro se
Peter Morris MacKenna, Esq.
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