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Haverstick v. Gerry

United States District Court, D. New Hampshire

July 26, 2016

Davian L. Haverstick
v.
New Hampshire State Prison Warden Richard Gerry et al.[1]

          Davian L. Haverstick, Plaintiff, Pro Se.

          NH State Prison, Warden, Defendant, represented by Francis Charles Fredericks, NH Attorney General's Office & Kenneth A. Sansone, NH Attorney General's Office.

          Helen Hanks, Defendant, represented by Francis Charles Fredericks, NH Attorney General's Office & Kenneth A. Sansone, NH Attorney General's Office.

          NH Department of Corrections, Commissioner, Defendant, represented by Francis Charles Fredericks, NH Attorney General's Office & Kenneth A. Sansone, NH Attorney General's Office.

          Christopher Kench, Defendant, represented by Francis Charles Fredericks, NH Attorney General's Office & Kenneth A. Sansone, NH Attorney General's Office.

          NH Attorney General - Notice Only - Civil (Court Use Only), Notice Only, represented by Kenneth A. Sansone, NH Attorney General's Office.

          NH Department of Corrections - Notice Only - Civil (Court Use Only), Notice Only, represented by Kenneth A. Sansone, NH Attorney General's Office.

          REPORT AND RECOMMENDATION

          ANDREA K. JOHNSTONE, Magistrate Judge.

         Before the court is plaintiff Davian L. Haverstick's complaint addendum (doc. no. 40). This court liberally construes the filing as a motion to seek the court's leave to add claims, filed several months after the March 7, 2016, deadline for amending the pleadings set forth in the pretrial scheduling order. See Dec. 7, 2015, Order (doc. no. 18) (approving Doc. No. 17, with changes). Defendants object to the proposed amendment to the complaint. See Doc. No. 41.

         Standard

         In general, under Fed.R.Civ.P. 15(a), leave to amend is to be "freely given, " id., "unless it would be futile, or reward... undue or intended delay." Resolution Tr. Corp. v. Gold, 30 F.3d 251, 253 (1st Cir. 1994); see also Todisco v. Verizon Commc'ns, Inc., 497 F.3d 95, 98 (1st Cir. 2007). Where the filing of a complaint amendment occurs after the deadline for such amendments set by the court, the plaintiff must show "good cause, " which is a standard that focuses more on the diligence of the moving party than on prejudice to the non-movant. Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004). To make an assessment as to whether the proposed amendment is futile, this court applies the standard for preliminary review of claims under LR 4.3(d)(1) and 28 U.S.C. § 1915A, as set forth in the March 30, 2015, Order (doc. no. 4).

         Discussion

         Haverstick seeks to add three new claims to this case: a claim alleging disability discrimination under the Americans with Disabilities Act ("ADA"), a claim that the Department of Corrections ("DOC") discriminates on the basis of wealth or poverty in denying inmates dentures, and a claim that the decision not to provide Haverstick with dentures is medical malpractice. Haverstick's attempt at adding those claims to this lawsuit at this stage of the case should be denied.

         First, the proposed complaint amendment is untimely; all of the relevant facts underlying Haverstick's proposed new claims have been in his possession for months. Defendants moved for summary judgment successfully on the claim asserting that denying Haverstick dentures violated his rights to health care under the Eighth Amendment. Although plaintiff's motion to reconsider that decision is pending, in the absence of a favorable ruling on that motion to reconsider (doc. no. 38), this court cannot find ...


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