UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kari Smart et al.

v. Case No. 22-cv-436-PB Opinion No.

Strafford County et al.

MEMORANDUM AND ORDER

Alyssa Burson was arrested by a Somersworth Police Department

(SPD) officer and detained for a brief period at the Somersworth Police

Station. She was later transferred to the Strafford County House of

Corrections (SCHOC), where she died in custody. The administrator of

Burson’s estate and her minor son have sued several municipal and county

defendants as well as various associated individuals for wrongful death and

other federal and state claims. Plaintiffs have moved to amend their

complaint a second time to name SPD Dispatcher Skip Pepin, SCHOC

Nurses Monique O’Haire and Renee Jerram, and SCHOC Correctional

Officer Taylor Sims as new defendants. Because I determine that plaintiffs’

claims against the new defendants are barred by the statute of limitations, I

deny their motion.

1 I. BACKGROUND 1

A. Factual Background

On July 7, 2020, an SPD officer arrested Burson at a Walmart in

Somersworth, New Hampshire for theft and violating a protective order. Doc.

1 at 8. Burson, who had been previously diagnosed with endocarditis—an

infection of a heart valve—began to have trouble breathing while she was

detained at SPD headquarters. Id. at 7, 9-12. She was then transferred to

SCHOC, where she presented with swollen limbs and experienced further

difficulty breathing. Id. at 12-17. Despite repeatedly seeking help from

officers at SPD and personnel at SCHOC, Burson received no medical

treatment and died on the morning of July 8, 2020. Id. at 9-19.

B. Procedural Background

Prior to filing their complaint, the administrator of Burson’s estate and

Burson’s minor son, proceeding through his guardian and next friend, sent a

right-to-know request to the Strafford County Department of Corrections

1 The following facts are drawn, in part, from an affidavit filed by defendants and are not disputed by plaintiffs. See Doc. 26-2. Though such documents are generally not properly considered when ruling on a motion to amend a complaint, Ahman v. Day,

, 282 (S.D.N.Y. 2022), facts drawn from defendants’ affidavit are provided only for background context and are irrelevant to my analysis, which is based exclusively on the allegations set forth in plaintiffs’ complaint and information drawn from the docket.

2 (“SCDOC”) in January 2022. Doc. 26-2 at 1. In June 2022, SCDOC sent

plaintiffs a thumb drive containing documents and video footage from

Burson’s incarceration at SCHOC. 2 Id. at 2. The thumb drive included

Burson’s entire medical file going back several years; twelve audio recordings

of witness interviews, including interviews of O’Haire and Jerram; a list of all

corrections and medical staff on duty the night of Burson’s death, including

Sims; and SCDOC’s operational guidelines, including a guideline titled

“Medical Assessments.” Id. at 2.

In response to another right-to-know request sent by plaintiffs in

March 2022, the Strafford County Sheriff’s Office sent plaintiffs the incident

report from Burson’s death in June 2022. Id. The report identified Sims,

O’Haire, and Jerram as SCHOC employees who had contact with Burson

during her incarceration. Id. at 3. Specifically, the report noted that Sims

encountered Burson at intake and observed her shortness of breath, that

O’Haire knew of a call in which Burson’s swollen legs were discussed but did

not assess her, and that Jerram looked in on Burson as she slept but did not

assess or treat her. Id.

2 The June 2022 thumb drive was a copy of an earlier May 2022 thumb drive that plaintiffs were unable to open. Id. at 2.

3 In February 2022, plaintiffs also sent right-to-know requests to SPD.

SPD responded later that month and provided police reports, dispatch logs,

video footage, and a list of employees on duty the evening of Burson’s death,

including Pepin. Doc. 27-1 at 1.

Plaintiffs filed suit in this court in October 2022. Doc. 1. They sued

several municipal and county defendants—including Strafford County,

SCDOC, SCHOC, the City of Somersworth, and SPD—as well as various

individuals associated with those entities—including the superintendent of

SCDOC, several SPD officers, several SCHOC officers, and an unspecified

number of “John and Jane Doe Defendants.” 3 Doc. 14. The complaint alleges

that all of the defendants violated Burson’s Fourteenth Amendment Due

Process right to receive adequate medical care and are liable for wrongful

death and loss of consortium under New Hampshire state law. Id. at 24-29.

The complaint also brings a claim against the municipal and county

defendants for disability discrimination in violation of Title II of the

Americans with Disabilities Act, codified at

et seq. Id. at

27-28.

3 For clarity and convenience, I refer to defendants SCDOC, SCHOC, and individuals associated with these entities as “Strafford County Defendants” and defendants City of Somersworth, SPD, and individuals associated with these entities as “Somersworth Defendants.”

4 In February 2023, the Strafford County Defendants sent their initial

disclosures to plaintiffs, indicating that Sims, O’Haire, and Jerram had

discoverable information. Doc. 26-2 at 3. In the same month, the parties

agreed on a discovery plan setting June 1, 2023, as the deadline for plaintiffs

to amend their complaint and April 15, 2024, as the deadline for the

completion of discovery. Doc. 15 at 2-3. The court then endorsed the plan as a

scheduling order. Feb. 21, 2023, Docket Entry.

In June and November 2023, plaintiffs sent discovery requests to the

named Strafford County Defendants, but sought no information from Sims,

O’Haire, or Jerram. Doc. 26-2 at 4. Between February and March 2024,

plaintiffs deposed five named Strafford County Defendants and two named

Somersworth Defendants. Id.; Doc. 24-3 at 2-3. At the end of March 2024,

plaintiffs sought to depose Sims, who was on leave at the time, Doc. 26-2 at 4,

and shortly thereafter, plaintiffs deposed Pepin, Doc. 24-4 at 3.

Through deposition testimony, plaintiffs learned that SPD had an

internal policy requiring dispatchers to monitor detainees in holding cells but

that Pepin intentionally lowered the audio surveillance on the night of

Burson’s arrest. 4 Doc. 24-3 at 5-6. Plaintiffs also discovered that Sims noted

4 While plaintiffs do not cite an affidavit in support of the information unearthed through discovery, I assume the statements made in their Memorandum are true for purposes of analysis.

5 that Burson “was suffering from an obvious medical condition that should

have prompted immediate medical treatment” but that he failed to seek care

for her. Id. at 6. Finally, plaintiffs discovered that two of the nurses, O’Haire

and Jerram, failed to conduct a medical assessment of Burson after being

contacted by an SCHOC officer regarding her swollen legs. Id.

In April 2024, plaintiffs filed a motion to amend their complaint,

seeking to replace the John and Jane Doe Defendants with Pepin, Sims,

O’Haire, and Jerram. Doc. 24.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 15(a) provides the standard of review

for motions to amend. Rule 15(a) allows one amendment as “a matter of

course,” but subsequent amendments require either the opposing party’s

consent or the court’s leave. Fed. R. Civ. P. 15(a). Such leave should be

granted “when justice so requires.” Id. Although Rule 15(a) sets forth a

liberal amendment policy, leave to amend need not be “mindlessly” granted.

Mulder v. Kohl’s Dep’t Stores Inc.,

(1st Cir. 2017) (quoting

Aponte-Torres v. Univ. of P.R.,

, 58 (1st Cir. 2006)). A motion to

amend may be rejected if it is futile, unduly delayed, made in bad faith, the

result of repeated failures of due diligence, or unfairly prejudicial to the

opposing party. Foman v. Davis,

(1962). The number of

6 prior amendments to the complaint is also relevant to the analysis. ACA Fin.

Guar. Corp. v. Advest, Inc.,

, 56 (1st Cir. 2008).

Courts examine the futility of an amended complaint under the same

standard that is used to assess a motion to dismiss based on Rule 12(b)(6).

See Amyndas Pharms., S.A. v. Zealand Pharma A/S,

(1st Cir.

2022). Accordingly, a proffered claim must be facially plausible, allowing a

court to draw “the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal,

(2009). An amended

complaint is futile if the relevant statute of limitations has lapsed. See Rife v.

One West Bank, F.S.B.,

(1st Cir. 2017); Chalifoux v. Proto

Labs, LLC,

,

, at *3 (D.N.H. Aug. 2, 2023).

III. ANALYSIS

Defendants contend that the motion to amend must be denied as futile

because plaintiffs’ claims against the new defendants are barred by New

Hampshire’s three-year statute of limitations. See N.H. Rev. Stat. Ann.

508:4. Plaintiffs do not challenge defendants’ claim that plaintiffs waited

more than three years after Burson died to file the motion to amend. Nor do

they argue that the statute of limitations was tolled because of the discovery

rule. See, e.g., Lamprey v. Britton Constr., Inc.,

(2012)

(explaining the discovery rule). Instead, plaintiffs argue that their new claims

7 relate back to the filing of their original complaint pursuant to Federal Rules

of Civil Procedure 15(c)(1)(A) and 15(c)(1)(C).

Rule 15(c)(1)(A) provides that amendments may relate back to the time

of the original pleading if the relevant statute of limitations allows relation

back. Rule 15(c)(1)(C), in turn, allows for relation back if the amendment

“changes [a] party or the naming of [a] party,” but only if (1) the amendment

asserts a new claim or defense that arose out of the same conduct,

transaction, or occurrence as the original pleading, and (2) the new party

received appropriate notice of the action and “knew or should have known

that the action would have been brought against it, but for a mistake

concerning the proper party’s identity.” I first consider plaintiffs’ reliance on

Rule 15(c)(1)(C) before turning to the relevance of Rule 15(c)(a)(1).

A. Rule 15(c)(1)(C)

Notwithstanding plaintiffs’ arguments to the contrary, Rule 15(c)(1)(C)

does not authorize relation back in this case. Rule 15(c)(1)(C) only applies in

cases of misnomer or misidentification. It does not apply when the statute of

limitations has run because a plaintiff failed to discover a claim against a

new party within the limitation period. Wilson v. United States,

(1st Cir. 1994). Nor can the rule be circumvented by naming John Doe

defendants in the original complaint and later substituting new defendants

8 for the John Doe defendants. Herrera v. Cleveland,

(7th Cir.

2021); Murphy v. Strafford Cnty.,

,

, at *2

(D.N.H. Jan. 13, 2022).

Plaintiffs concede in their reply brief that they do not seek leave to

amend “based on the misnomer of a current defendant or mistaken identity.”

Doc. 30 at 6. Rather, they seek to add new parties based on information

“naturally unearthed” through discovery.

Because Rule 15(c)(1)(C) does

not authorize relation back for this type of problem, it does not entitle

plaintiffs to the relief they seek.

B. Rule 15(c)(1)(A)

Plaintiffs’ argument based on Rule 15(c)(1)(A) fails for similar reasons.

The New Hampshire Supreme Court has sometimes permitted relation back

in cases of misnomer or mistaken identity, see, e.g., Dupuis v. Smith

Properties, Inc.,

(1974), but it has never used relation

back to allow a new defendant to be named after the statute of limitations

has run simply because a plaintiff has failed to discover that she has a claim

against a defendant within the limitations period. Further, the New

Hampshire Supreme Court has flatly rejected the proposition that a

complaint’s “generalized assertion of a class of potential defendants is specific

enough to qualify as a named party that can be ‘clarified’ by subsequent

9 amendment after the expiration of the statute of limitations.” Perez v. Pike

Indus., Inc.,

(2005). As the court explained, it considered

such a position to be “untenable” because it would improperly allow plaintiffs

to circumvent the statute of limitations.

Because New Hampshire law

provides the statute of limitations for all of plaintiffs’ claims, and New

Hampshire law does not permit relation back for the reasons specified by

plaintiffs, plaintiffs’ new claims cannot be saved by Rule 15(c)(1)(A).

IV. CONCLUSION

For the foregoing reasons, plaintiffs’ motion for leave to file a second

amended complaint, Doc. 24, is denied.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

August 16, 2024

cc: Counsel of Record

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