Kelly v. Dowaliby 13-cv-107-LM 5/7/14 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Howard D. Kelly

v. Civil No. 13-cv-107-LM Opinion No.

Warren Dowaliby et al.

O R D E R

Before the court are the following matters1:

 Plaintiff Howard D. Kelly’s motion to amend (doc. no. 29) the complaint to add new defendants and claims;

 Defendants’ motion to stay this action (doc. no. 32) until this court rules on defendants’ December 2013 and March 2014 motions for summary judgment;

 Plaintiff’s motion (doc. no. 35), for additional time to object to the March 2014 motion for summary judgment and to disclose experts; and

 Plaintiff’s motion for appointment of counsel (doc. no. 34).

Defendants have objected to each of plaintiff’s motions. See

Document Nos. 30, 36, and 37). Plaintiff has not responded to

defendants’ motion for a stay.

1 Also pending are two motions for summary judgment filed by defendants (doc. nos. 24 and 31). Those motions will be addressed at a later date. Background

Kelly was incarcerated at the Strafford County House of

Corrections (“SCHC”) as a federal pretrial detainee from July

17, 2008, until March 12, 2010. Kelly filed this action in

February 2013.

Kelly asserts that while he was at the SCHC, he suffered

from a seizure disorder, and that medical providers at the SCHC

denied him previously prescribed anti-seizure medication. Upon

completion of this court’s preliminary review of the complaint

under 28 U.S.C. § 1915A, this court dismissed a Fourteenth

Amendment supervisory liability claim asserted against former

SCHC Superintendent Warren Dowaliby and allowed the following

claim to proceed against three members of the SCHC medical

staff:

Kelly was denied his Fourteenth Amendment due process right to adequate medical care during pretrial detention, because defendants Tracy Warren, Rebecca Eischen, and Dawn Dow, with deliberate indifference, failed to treat Kelly’s seizure disorder, a serious medical need.

See Order (doc. no. 19) (approving Report and Recommendation

(doc. no. 9)). Defendants Warren, Eischen, and Dow have moved

for summary judgment, on grounds set forth in two separate

motions for summary judgment, filed in December 2013 (doc. no.

24) and March 2014 (doc. no. 31).

2 Plaintiff has moved to amend the complaint to reassert a

supervisory liability claim under

against

Dowaliby based on allegations that plaintiff specifically

notified Dowaliby in January 2009 that the medical staff had

failed to treat his seizure disorder. Plaintiff’s motion also

seeks to add new defendants to that medical care claim, and to

assert additional conditions of confinement and First Amendment

retaliation claims against new defendants.

Discussion

I. Motion to Amend

A. Standard

Federal Rule of Civil Procedure 15(a)(2) provides that a

party who is no longer able to amend the complaint as of right

may amend only with the court’s leave, and that the court

“should freely give leave when justice so requires.” Fed. R.

Civ. P. 15(a)(2). “To the extent a proposed amendment would add

new parties, the motion is technically governed by [Federal Rule

of Civil Procedure] 21, which provides that ‘the court may at

any time, on just terms, add or drop a party,’ rather than Rule

15(a).” Garcia v. Pancho Villa’s of Huntington Vill., Inc.,

(E.D.N.Y. 2010) (citations omitted). However,

the “same standard of liberality” applies under either rule.

3 The court may deny a motion to amend “‘for any adequate

reason apparent from the record,’” including futility of the

proposed amendment. Todisco v. Verizon Commc’ns, Inc.,

, 98 (1st Cir. 2007) (citation omitted). In evaluating

whether pro se plaintiff Kelly’s proposed complaint amendment

states any plausible claim for relief, the court applies the

same standard applied in its preliminary review of the original

complaint, which is set forth in the June 3, 2013, report and

recommendation (doc. no. 9). See generally Adorno v. Crowley

Towing & Transp. Co.,

(1st Cir. 2006)

(applying Fed. R. Civ. P. 12(b)(6) standard to determine if

proposed amendment is futile).

B. Medical Care Claim

The applicable standards for stating a viable Fourteenth

Amendment medical care claim are stated in the June 3, 2013,

report and recommendation (doc. no. 9), and need not be repeated

here. Kelly seeks to add claims against ten unnamed SCHC

medical staff members (identified as John and Jane Does 1-10),

based on assertions that Kelly told each of those unnamed staff

members that he had experienced seizures while at the SCHC, but

that he received “little or no response from” them. Kelly’s

allegations as to those unnamed medical staff members resemble

his allegations as to existing defendants Dow and Eischen, and

4 the original complaint similarly alleged that unnamed SCHC

medical staff members were deliberately indifferent to his

seizure disorder. The court allows this claim to proceed at

this time against ten unnamed SCHC medical staff members

identified as “John and Jane Does 1-10” as discovery is

reasonably likely to reveal the relevant names.2 See Martínez-

Rivera v. Sánchez Ramos,

(1st Cir. 2007); Wilson

v. Town of Mendon,

(1st Cir. 2002). Kelly is

expected to use the discovery process to obtain those names, and

to move promptly to amend the complaint to substitute the

correct names, to avoid dismissal under Fed. R. Civ. P. 4(m).

Kelly further seeks to add a claim of supervisory liability

as to former Superintendent Dowaliby, for his acts and omissions

relating to his subordinates’ failure to treat Kelly’s seizure

disorder. Specifically, Kelly alleges that in an appeal of a

disciplinary charge, in January 2009, Kelly informed Dowaliby

that he suffered frequent seizures and that the medical staff at

SCHC had failed to treat him in connection with those seizures.

Kelly further asserts that Dowaliby failed to respond to that

2 The parties have briefed a potentially dispositive motion asserting that similar Fourteenth Amendment medical care claims asserted against Warren, Dow, and Eischen are both time-barred and precluded by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a); those grounds for dismissal would appear to apply equally to the claims that Kelly seeks to assert against the John and Jane Doe defendants. The court expresses no opinion at this time on the merits of that motion.

5 information. The facts alleged, if taken as true with all

reasonable inferences construed in Kelly’s favor, state a

plausible claim that Dowaliby’s failure to respond to specific

information regarding Kelly’s untreated seizure disorder

manifested deliberate indifference to a substantial risk of

serious harm, and further, led to the medical staff’s continuing

failure to treat Kelly. Accordingly, the motion to amend is

granted to add a section 1983 claim of supervisory liability as

to Dowaliby, relating to his conduct with respect to the failure

to treat Kelly’s seizure disorder at the SCHC.3

C. New Claims

In the proposed amended complaint, Kelly seeks to add new

claims that SCHC officers violated his Fourteenth Amendment

right to humane conditions of pretrial confinement, by

confiscating bedding, a second mattress, compression stockings,

and a second pillow which had been prescribed by the medical

department for Kelly’s use while he was at the SCHC in response

to his complaints of insomnia, painful legs, and swelling.

Kelly also asserts claims alleging that SCHC officers retaliated

against him for exercising his First and Fourteenth Amendment

rights to petition for a redress of grievances, and that SCHC

3 The court expresses no opinion in this order on whether plaintiff’s claims relating to Dowaliby are time-barred or restricted by the PLRA.

6 supervisory officers Topham and Roy failed to train or

adequately supervise their subordinates.

All of the acts relating to the confiscation of prescribed

items and alleged retaliatory conduct occurred more than three

years before Kelly filed this action, and more than four years

before Kelly sought to amend the complaint to add those claims.

See Gorelik v. Costin,

(1st Cir. 2010) (three-

year statute applies to § 1983 claims arising in New Hampshire).

“Section 1983 claims generally accrue when the plaintiff knows,

or has reason to know of the injury on which the action is

based, and 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.” Gorelik,

(internal quotation marks omitted). Applying that standard, the

court finds that Kelly’s claims accrued in 2009, and are now

time-barred.

Furthermore, Kelly has failed to state plausible claims for

relief on the new claims. The facts alleged do not show that

the officers that confiscated and/or failed to return the items

were subjectively aware of any substantial risk of serious harm

to Kelly posed by their conduct. As to the retaliation claim

based on allegations of cell searches, verbal harassment, the

threatened removal of his mattress, the temporary confiscation

7 of prescribed bedding and stockings, and other acts, Kelly has

failed to plead facts showing that those acts would deter an

inmate of ordinary firmness from filing grievances. See Starr

v. Dube,

(1st Cir. 2009); Starr v. Moore,

(D.N.H. 2012). Finally, the

allegations regarding Topham’s and Roy’s failure to train and or

supervise their subordinate officers, when stripped of legal

conclusions, fail to state plausible claims for relief.

Accordingly, the motion to amend the complaint is denied, in

part, as futile, to the extent Kelly seeks to assert new

Fourteenth Amendment claims and First Amendment retaliation

claims relating to the confiscation of stockings and bedding,

shake-downs of his cell, harassment, training, supervision of

subordinate officers, and other acts that affected him in 2009.

II. Motion for Stay and Motion to Extend Deadlines

Defendants have moved to stay all proceedings in this case

until the court rules on two motions for summary judgment that

they have filed in this action; plaintiff has not responded to

that motion. Plaintiff has moved for additional time to object

to defendants’ March 2014 motion for summary judgment and to

disclose experts and expert reports, and defendants have

objected to that motion.

8 Plaintiff asserts that his status as an inmate in a federal

prison in California and a month-long lock-down order imposed at

that facility in March 2014 rendered him unable to file a timely

objection to the summary judgment motion and to disclose experts

in this case. In light of the difficulties rendered by

plaintiff’s pro se status and out-of-state incarceration, the

court grants plaintiff ninety days from the date of this order

to disclose experts and to object to the March 2014 motion for

summary judgment. The court continues other deadlines in this

case, including the deadlines set in the December 2013 amended

trial notice, as set forth in the conclusion of this order.

This court has discretion to stay certain proceedings while

a dispositive motion is pending, see Aponte-Torres v. Univ. of

P.R.,

, 59 (1st Cir. 2006) (stay of discovery).

Because a ruling on the December 2013 motion for summary

judgment could obviate the need for discovery, and in light of

this court’s order on plaintiff’s motion to amend, the court

continues certain deadlines in this case, including the

discovery deadline. The revisions to the case schedule set

forth in the conclusion of this order provide a measure of the

relief sought in the stay motion, without unnecessarily

preventing the parties from pursuing discovery or litigating

issues as they see fit, while the court completes its

9 consideration of the summary judgment motions. The motion for a

stay (doc. no. 32) is therefore denied, as the court issues, in

the conclusion of this order, a revised discovery plan and

pretrial schedule.

III. Motion for Appointment of Counsel

Plaintiff has moved for the appointment of counsel citing

his indigency and incarceration in California. He asserts that

he is unable to depose witnesses and interview prisoners while

he is incarcerated, and he further asserts that a lawyer would

help him engage and communicate with an expert witness and

opposing counsel.

This court has discretion to deny an indigent plaintiff’s

request for appointed counsel, unless he shows that his case

presents exceptional circumstances, such that fundamental

unfairness, impinging upon the right to due process, is likely

to result if counsel is not appointed. See DesRosiers v. Moran,

(1st Cir. 1991). A ruling on the fully-briefed

December 2013 motion for summary judgment (doc. no. 24) could

obviate the need for further discovery or litigation in this

case. The motion for appointment of counsel (doc. no. 34) is

therefore denied without prejudice to refiling after the court

rules on the pending summary judgment motion.

10 Conclusion

For the reasons explained in this order, the court directs

as follows:

1. Plaintiff’s motion to amend the complaint (doc. no.

29) is GRANTED in part, to the extent that the court directs

service of the amended complaint upon former SCHC Superintendent

Warren Dowaliby and ten John and Jane Doe SCHC medical staff

employees. The clerk’s office is directed to redocket Document

No. 29-1 as the “Amended Complaint,” and Documents Nos. 29-2 to

29-5 as exhibits to the amended complaint. The motion to amend

is otherwise DENIED.

2. The clerk’s office shall contact Attorney Belobrow to

request that he notify the court in writing, within ten days, if

he is authorized to accept service on Dowaliby’s behalf, and on

behalf of the ten John and Jane Doe defendants. The clerk’s

office shall also request that Attorney Belobrow, if unable to

accept service for Dowaliby, make inquiries as to the SCHC’s

last known address for Dowaliby, and, within ten days, submit

that address to the court under seal, at Level I, if service

upon Dowaliby by the U.S. Marshals Service is necessary.

3. If Dowaliby and/or the John and Jane Doe defendants

must be served, the clerk’s office shall prepare and issue

summonses for Dowaliby, using the address provided under seal,

11 and for “John and Jane Does 1-10,” using the SCHC’s address, and

forward to the United States Marshal for the District of New

Hampshire (“U.S. Marshal’s office”): the summonses; the Amended

Complaint with exhibits (doc. nos. 29-1 to 29-5); the June 3,

2013, report and recommendation (doc. no. 9); the order

approving that report and recommendation (doc. no. 19); and this

order. Upon receipt of those documents, the U.S. Marshal’s

office shall effect service, see Fed. R. Civ. P. 4(c)(3) and

4(e).

4. Dowaliby and the John and Jane Doe defendants are

directed to respond to the amended complaint within 21 days of

service, with the date of service deemed to occur upon the date

of Attorney Belobrow’s filing of a notice of acceptance of

service, or upon completion of service by the U.S. Marshal’s

office, pursuant to Fed. R. Civ. P. 4(e). Defendants Tracy

Warren, Rebecca Eischen, and Dawn Dow shall file their response

to the amended complaint within 21 days of the date of this

order.

5. The court DENIES without prejudice plaintiff’s motion

for appointment of counsel (doc. no. 34).

6. The court DENIES defendants’ motion for a stay (doc.

no. 32).

12 7. The court GRANTS plaintiff’s motion (doc. no. 35) to

extend deadlines for disclosing experts and for objecting to the

March 2014 summary judgment motion. The deadlines in the

December 29, 2013, amended trial notice are continued for ninety

days. The summary judgment motion (doc. no. 31) briefing

schedule and the November 2013 discovery plan are revised as

follows:

Event Revised Deadline March 2014 Summary Plaintiff’s August 1, 2014 Judgment Motion Objection (Doc. No. 31)

Experts and Plaintiff August 1, 2014 Expert Written Reports Defendants September 1, 2014

Challenges to Defendants September 1, 2014 Expert Testimony Plaintiff October 1, 2014 Completion of November 1, 2014 Discovery Summary Judgment November 15, 2014 Motions

SO ORDERED.

__________________________ Landya McCafferty United States District Judge May 7, 2014 cc: Howard D. Kelly, pro se Corey M. Belobrow, Esq. LBM:nmd

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