Wolff v. NH Department of Corrections et al

Filing 41

OBJECTION to 37 MOTION to Amend 7 Addendum, 5 Complaint filed by NH Department of Corrections, Commissioner, James Daley, Jeff Perkins. (Livernois, Andrew)

Wolff v. NH Department of Corrections et al

Doc. 41

Case 1:06-cv-00321-PB

Document 41

Filed 07/17/2007

Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE ___________________________________ | | | Plaintiff, | | v. | | New Hampshire Department of | Corrections, et al., | | Defendants. | ___________________________________ | Charles Wolff,

CIVIL ACTION NO. 06-321-PB

OBJECTION TO MOTION TO AMEND COMPLAINT NOW COME the Defendants, by and through their Counsel, the Office of the Attorney General, and objects to Plaintiff's Motion to Amend (Document 37, filed July 2, 2007), stating as follows: 1. Plaintiff filed the complaint in this case on August 28, 2006. Pursuant to 28

U.S.C. § 1915A the district court conducted a preliminary review of Plaintiff's complaint and issued a Report and Recommendation (Muirhead, J. 1/26/07) stating that Plaintiff had pled facts sufficient to state a claim in regards to (a) a First Amendment claim for denial of his right to practice his religion, and (b) a claim under RLUIPA. The Court dismissed any additional claims, including any claims alleging a violation of his Eighth Amendment right to medical care. 2. On June 25, 2007 Plaintiff filed a motion (Document No. 30) seeking to amend

his complaint in order to dismiss his claims against Defendant William Wrenn. On June 25, 2007 Plaintiff filed a second motion seeking to amend his complaint (Document No. 31) in which Plaintiff made clear that he was not naming Donald Andrews as a Defendant.

1
Dockets.Justia.com

Case 1:06-cv-00321-PB

Document 41

Filed 07/17/2007

Page 2 of 3

3.

Plaintiff has now filed a third motion to amend his complaint, this time seeking to

add an Eighth Amendment claim for failure to provide medical care, and seeking to name twelve additional defendants. 4. Defendants object to Plaintiff's attempt to introduce new claims and new

defendants in this action. The Court has already conducted an initial screening of this complaint and has determined that Plaintiff has only stated a claim in regard to his religious claims. Plaintiff should not be allowed to circumvent that ruling by simply filing an amendment to his complaint and re-introducing those claims again. 5. Furthermore, under the Federal Rules of Civil Procedure, a party is permitted to

amend his or her pleadings only once as a matter of course, and only then if it is before a responsive pleading has been filed. Fed. R. Civ. P. 15(a). After that time, amendments are only allowed by leave of court, when "justice so requires." Defendants submit that justice does not require allowing Plaintiff to amend his complaint in order to add in claims that have already been dismissed by the Court for failing to State a claim. 6. No separate memorandum of law has been filed with this motion.

WHEREFORE, the Defendants respectfully request that the Honorable Court: A. B. Deny Plaintiff's Motion to Amend his Complaint; Grant any additional relief as is just and proper.

Respectfully submitted, NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS, ET AL. By and through their attorneys, KELLY A. AYOTTE

2

Case 1:06-cv-00321-PB

Document 41

Filed 07/17/2007

Page 3 of 3

ATTORNEY GENERAL \s\ Andrew B. Livernois_________ Andrew B. Livernois, Bar No.14350 Assistant Attorney General Civil Bureau 33 Capitol Street Concord, New Hampshire 03301-6397 [phone] Certification of Service July 17, 2007 I hereby certify that a copy of the foregoing was mailed this day, postage prepaid, to Charles Wolff, pro se, P.O. Box 14, Concord, NH 03302. /s/ Andrew B. Livernois Andrew B. Livernois
Doc: 206119

3