Steven J. Roy
William Wrenn, Commissioner of the New Hampshire Department of Corrections, et al. Opinion No. 2013 DNH 113.
JOSEPH A. DiCLERICO, Jr., District Judge.
Steven J. Roy, who is incarcerated and proceeding pro se and in forma pauperis, filed a civil rights action against the New Hampshire Department of Corrections, Commissioner William Wrenn, New Hampshire State Prison Warden Richard Gerry, and New Hampshire State Prison Major Jon Fouts. Roy now moves for leave to amend his amended complaint to add five new defendants and seven new claims, most of which pertain to new allegations of copyright infringement. The defendants object to Roy's motion for leave to amend on the grounds that the new claims and defendants do not meet the requirements for joinder and will not survive review under 28 U.S.C. § 1915A.
Standard of Review
Under Federal Rule of Civil Procedure 15(a)(2), "[t]he court should freely give leave [to amend the complaint] when justice so requires." The liberal standard under Rule 15(a)(2) does not mean that all requests to amend will be granted. Manning v. Boston Med. Ctr. Corp., ___ F.3d ___, 2013 WL 3942925, at *22 (1st Cir. Aug. 1, 2013). Instead, "a district court may deny leave to amend when the request is characterized by undue delay, bad faith, futility, or the absence of due diligence on the movant's part." Nikitine v. Wilmington Tr. Co., 715 F.3d 388, 390 (1st Cir. 2013).
A proposed amendment to a complaint is futile if, as amended, "the complaint still fails to state a claim." Abraham v. Woods Hole Oceanographic Inst. , 553 F.3d 114, 117 (1st Cir. 2009). Therefore, review for futility is identical to review under Federal Rule of Civil Procedure 12(b)(6). Edlow v. RBW, LLC , 688 F.3d 26, 40 (1st Cir. 2012).
Further, when, as here, the plaintiff is a prisoner proceeding in forma pauperis, the court must screen the claims before allowing the action to proceed. 18 U.S.C. §§ 1915(e)(2)(B) & 1915A; Villar v. Buttermore, 2013 WL 3945914, at *5 (D.N.H. July 31, 2013). The standard used for review under § 1915(e)(2) and § 1915A, to determine whether the complaint should be dismissed for failing to state a claim, is the same standard as is used for a motion under Federal Rule of Civil Procedure 12(b)(6). Villar, 2013 WL 3945914, at *5; see also Rogers v. Boatright , 709 F.3d 403, 407 (5th Cir. 2013). For purposes of screening, the court construes pro se pleadings generously, Haines v. Kerner , 404 U.S. 519, 520 (1972), but the complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, " Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Under the plausibility standard, the court does not consider conclusory legal allegations and conclusions. Shay v. Walters , 702 F.3d 76, 82 (1st Cir. 2012).
Roy filed suit on August 7, 2012, and filed an amended complaint on September 5, 2012. He also sought a preliminary injunction. On preliminary review, the magistrate judge issued reports and recommendations to deny the motion for a preliminary injunction and to dismiss the action, which were approved. In response to Roy's motion for reconsideration, the court allowed his claim under 42 U.S.C. § 1983 that Wrenn, Gerry, and Fouts retaliated against him in violation of the First Amendment. The court also allowed Roy's state law claim of intentional infliction of emotional distress.
Roy filed a motion for leave to amend the amended complaint on July 5, 2013. In support of the motion, Roy states that while in prison he designed, wrote, and copyrighted software, known as "JOINT", with another inmate, William Johnson. He further states that he knew that the prison was infringing the copyright but lacked evidence to support the claim because "the defendants and their agents took affirmative steps to hinder his ability to detect and litigate their infringement of his copywritten software." Roy represents that he learned on May 13, 2013, that the defendants might still be using his software. He then alerted defense counsel and sent a "cease and desist' demand to the staff member who was overseeing the infringing."
In the proposed second amended complaint, Roy alleges eight claims, primarily pertaining to the JOINT software that he claims to have developed with William Johnson and the copyright that he asserts. Without differentiating among the defendants, Roy asserts claims of copyright infringement, retaliation against him for asserting his copyright, conspiracy to infringe his copyright, criminal copyright infringement, misappropriation or unjust enrichment (for use of copyrighted software), loss or damage to his legal materials, and intentional infliction of emotional distress. In claim four, Roy alleges that Lieutenant James Brown failed to protect him from danger caused by another inmate.
Roy explains in support of his motion for leave to amend that the transaction that was at the core of his claims in the amended complaint was the allegedly false disciplinary report. Based on more recent events, however, Roy has changed the focus of his claims from the allegedly false disciplinary report to infringement of his copyright. He now believes that the allegedly false disciplinary report was part of the defendants' efforts to cover up the infringement. Therefore, Roy's claims in the second amended complaint are mostly based on the alleged copyright infringement.
Roy moves for leave to amend the amended complaint to add new parties and new claims pertaining to alleged copyright infringement. The government opposes the motion, arguing that under Rules 18(a) and 20, Roy's new claims should not be allowed and also asserts that the new claims will not survive review under 28 U.S.C. § 1915A.
Under Rule 18(a), "[a] party asserting a claim... may join, as independent or alternative claims, as many claims as it has against an opposing party." Given the breadth of Rule 18, misjoinder of claims is no longer a viable issue in federal practice. 6A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane & Richard L. Marcus, Federal Practice & Procedure § 1582 (3d ed. 2010). Under Rule 20(a)(2), however, defendants may be joined in one action only if the claims are asserted against them "jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences" and the claims involve one or more common questions of law or ...