United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
Andrea
K. Johnstone United States Magistrate Judge.
Before
the court for preliminary review, see LR 4.3(d)(1),
is document no. 54. While captioned as a complaint, that
pleading has been docketed as a motion to amend. In this
Report and Recommendation, the court will refer to document
no. 54 as a proposed complaint amendment. The defendants
object (doc. no. 56). For the reasons that follow, the two
claims that plaintiff seeks to add to this case should be
dismissed.
Background
This
case was initiated by a 142-page complaint asserting claims
under at least ten legal theories against 32 defendants. Four
claims emerged from preliminary review: (1) a Fourteenth
Amendment due-process claim against Bruce Pelkie, Laura
Noseworthy, and Christopher Brackett, arising from
Stile's placement on D-Pod upon his arrival as a federal
pre-trial detainee at the Strafford County House of
Corrections ("SCHC"), which employed Pelkie (as
Superintendent), Noseworthy (as a Sergeant), and Brackett (as
a Lieutenant); (2) a Fourteenth Amendment
inadequate-medical-care claim against Pelkie and Tracey
Warren, arising from their alleged denial of a prescription
medication to Stile; (3) a First Amendment
free-exercise-of-religion claim against Pelkie, Jake Collins,
Robert Farrell, and Brackett, arising from Stile's
alleged lack of access to weekly religious services while
being housed in D-Pod; and (4) a claim under the Religious
Land Use and Institutionalized Persons Act, against the SCHC,
Pelkie, Collins, Farrell, and Brackett, also based upon
Stile's lack of access to religious services while housed
in D-Pod.
Also as
a result of preliminary review, plaintiff was given leave to
file complaint amendments that: (1) identify any federal
agents associated with the United States Marshals Service
("USMS") who may have been responsible for his
initial placement in D-Pod at the SCHC, and allege facts
that, if proven, would render those federal agents liable for
the due-process violation described above; (2) allege facts
concerning a claim that Stile's First Amendment rights
were violated by the manner in which SCHC officials handled
his mail; and (3) allege facts concerning a Fourteenth
Amendment conditions-of-confinement claim based upon an
alleged deprivation of drinking water during a time when his
cell was flooded.[1] All three claims were addressed in the May
9, 2016, Report and Recommendation ("R. & R.")
on preliminary review, document no. 6. The mail-handling and
drinking-water claims were addressed in the Order directing
service, document no. 7, that was issued in conjunction with
the R. & R. The housing-placement claim was inadvertently
omitted from the Order, but as the R. & R. was approved,
see doc. no. 14, plaintiff's leave to file a
complaint amendment covers all three claims.
In the
Order directing service, Stile was given until June 10, 2016,
to file an amended complaint correcting the deficiencies in
pleading his mail-handling and drinking-water claims. That
deadline was extended, and on August 26, 2016, plaintiff
filed a motion to amend his complaint to allege facts
concerning his mail-handling claim, but not his
drinking-water or housing-assignment claims. The motion was
denied. See doc. nos. 44 & 55. On October 27,
2016, this court gave plaintiff until November 18, 2016,
"to file a complaint amendment adding new allegations
relating to his initial placement in [D-Pod] in January 2013,
and naming individual USMS agents as new defendants."
Order (doc. no. 42) 2. On November 15, 2016, this court
granted plaintiff's motion to stay all proceedings. On
December 6, 2016, the stay was lifted. On January 27, 2017,
plaintiff filed th proposed complaint amendment that is now
before the court for preliminary review.
The
Legal Standard
Because
Stile is appearing pro se, the court construes his pleadings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94
(2007). As a general matter, under Rule 15(a) of the Federal
Rules of Civil Procedure, leave to amend should be
"freely given." However, leave to amend may be
denied if the proposed complaint amendment would be futile
because it "fails to state a plausible claim for relief,
" Privitera v. Curren (In re Curren),
855 F.3d 19, 28 (1st Cir. 2017), which is the same standard
that governs preliminary review, see 28 U.S.C.
§§ 1915(e) (2) (B) (ii) & l9l5A(b)(1).
Discussion
Unlike
document no. 28, a one-page filing in which plaintiff sought
to amend his mail-handling claim, document no. 54 is a
104-page complaint that includes 172 paragraphs of supporting
facts and 74 paragraphs of claims for relief. This
"new" complaint consists largely of plaintiff's
original complaint, including all of the claims that were
dismissed, with some new allegations added in. While the
court has granted plaintiff leave to amend his drinking-water
claim and his housing-placement claim, it has not granted him
leave to amend any of his other claims. Accordingly, to the
extent that plaintiff is seeking to reassert those claims in
document no. 54, the district judge should dismiss them for
the same reasons and on the same terms described in the May
9, 2016, R. & R. Accordingly, in the balance of this
section, the court deals individually with each of the two
remaining claims that plaintiff has been given leave to
amend.
I.
Drinking-Water Claim
In the
Order directing service, the court gave Stile a deadline for
amending his drinking-water claim and specified four sets of
factual allegations that would be necessary to state a claim
upon which relief can be granted. In his proposed complaint
amendment, plaintiff identifies Lieutenant Lee as the SCHC
officer who provided him with only eight ounces of water per
day, which was one of the four facts that he was directed to
allege. He did not, however: (1) identify the SCHC officers
who knew that he had been given only eight ounces of water
per day; (2) "[s]tate with specificity the facts upon
which [he] asserts that defendants knew about [his] lack of
access to drinking water, " Order (doc. no. 7) 4; or (3)
state facts concerning his access to other fluids and the
amount of time he was without access to fluids.
In
their objection to Stile's proposed complaint amendment,
defendants argue that leave to amend should be denied because
plaintiff's pleading is untimely and because it does not
correct the deficiencies in his original complaint. They are
correct on both counts.
In the
Order directing service, this court set a deadline for Stile
to move to amend his drinking-water claim. In the motion to
amend that he filed in August of 2016, he raised only his
mail-handling claim. See R. & R. (doc. no. 44) 3
n.2. He did not file the proposed complaint amendment that is
currently before the court until late January of 2017. That
cannot possibly count as a timely response to the Order
directing service, and plaintiff has not replied to
defendants' objection. Necessarily, plaintiff offers no
argument for the timeliness of the proposed ...