Kargbo v. Hillsborough County Department of Corrections, Superintendent

Filing 29

ORDER Directing US Marshal to Make Service; denying 24 MOTION for Service Upopn Attorney Kirby. So Ordered by Magistrate Judge Landya B. McCafferty.(vln) Modified on 2/1/2012 to add "denying 24" (vln).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Abu B. Kargbo
v.

Civil No. 11-cv-130-SM

James O’Mara et al.

O R D E R
Before the court is pro se plaintiff Abu B. Kargbo’s motion
to amend the complaint (doc. no. 21), seeking to add new
defendants and claims to this action.

Also before the court is

a complaint addendum (doc. no. 20), and a document docketed as
Kargbo’s request for issuance of summons (doc. no. 24), which
the clerk shall redocket as a motion to serve a summons upon
Attorney Carolyn Kirby, on behalf of Officer Meurin and Officer
Davis.

These documents are before the court for a ruling as to

each motion, and for a preliminary review of the complaint
addenda to determine if Kargbo has stated any new claim therein
that can be served, pursuant to Local Rule 4.3(d)(2).

I.

Motion to Amend
The new claims asserted in the filings at issue (doc. nos.

20 and 21), like the claims asserted in the original complaint
and the addenda thereto (doc. nos. 1, 8, 9, and 12), arise out

of incidents occurring at the Hillsborough County Department of
Corrections (“HCDC”) in Manchester, New Hampshire, when Kargbo
was a pretrial detainee there.

The motion to amend is in the

nature of a complaint addendum, in that the proposed amendment
adds factual allegations without reiterating the contents of
documents previously construed by this court to constitute the
complaint (doc. nos. 1, 8, 9, and 12)
Fed. R. Civ. P. 15 allows a plaintiff to amend a complaint
once after the complaint has been served, within twenty-one days
of defendants’ service of their response to the complaint.
Here, defendants had not yet filed a response to the complaint
when plaintiff sought leave to file an amendment.

The proposed

complaint amendment is timely, and the court finds no basis for
concluding that defendants will be prejudiced if the amendment
is allowed.

Accordingly, the motion to amend (doc. no. 21) is

granted.
The clerk’s office shall redocket the motion to amend (doc.
no. 21) as a complaint addendum.

The complaint, for all

purposes in this action, shall henceforth be deemed to consist
of the factual allegations set forth in doc. nos. 1, 8, 9, 12,
20, and 21.

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II.

Identification of Claims to Be Served
The court has found, for reasons stated in the Report and

Recommendation issued on this date, that Kargbo has stated an
excessive force claim against Sgt. T. Gordon and HCDC Officers
FNU Archambault and Wetherbee, under 42 U.S.C. § 1983.

For

reasons stated in the Report and Recommendation, the court has
recommended dismissal of all other claims asserted in the
complaint addenda (doc. nos. 20 and 21), including any claims
asserted as to the following individuals:

Sgt. FNU Antilles and

Officers Adam, J. Barbera, Boil, Crow, Davis, Ellis,
Fitzpatrick, Medic, Michaud, Price, Richard, and Ross.

III. Service of Amended Complaint
Service of the complaint as to Sgt. T. Gordon and Officers
FNU Archambault and FNU Wetherbee, shall be effected as follows:
The clerk’s office shall prepare and issue summonses for
Sgt. T. Gordon, Officer FNU Wetherbee, and Officer FNU
Archambault at the Hillsborough County Department of
Corrections.
Upon issuance of the summonses, the clerk’s office shall
forward to the United States Marshal for the District of New
Hampshire (the “U.S. Marshal’s office”):

the summonses; the

complaint and the addenda thereto (doc. nos. 1, 8, 9, 12, 20,

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and 21); the Report and Recommendation issued December 22, 2011
(doc. no. 15); the Order accepting the December 2011 Report and
Recommendation (doc. no. 27); the Report and Recommendation
issued on this date; and this Order.

Upon receipt of the

necessary documentation, the U.S. Marshal’s office shall serve
the individual defendants.

See Fed. R. Civ. P. 4(c)(3).

Defendants are instructed to answer or otherwise plead
within twenty-one days of service.

See Fed. R. Civ. P.

12(a)(1)(A).
Kargbo is instructed that all future pleadings, written
motions, notices, or similar papers shall be served directly on
defendants by delivering or mailing the materials to them or
their attorney(s), pursuant to Fed. R. Civ. P. 5(b).

IV.

Motion to Serve Attorney Kirby
Kargbo has requested that this court serve process upon

Attorney Carolyn Kirby, on behalf of Officers Meurin and Davis.
This court has not authorized service of the complaint upon
Officer Davis.

Officer Meurin is a former HCDC employee as to

whom service of process has not been executed because Kargbo has
failed to provide the court with current contact information for
him.

The record provides no grounds for finding that Attorney

Kirby represents Officer Meurin, or that Meurin would receive

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notice of this lawsuit through service upon Attorney Kirby.
Accordingly, the court denies the motion requesting service upon
Attorney Kirby (doc. no. 24), on behalf of Officers Davis and
Meurin.

Conclusion
In accordance with the foregoing, the court GRANTS the
motion to amend the complaint (doc. no. 21), directs the clerk
to redocket that motion (doc. no. 21) as an addendum to the
complaint, and orders service of process as to HCDC Sgt. T.
Gordon and Officers FNU Wetherbee and FNU Archambault, as
specified above.

In addition, the court directs the clerk to

redocket Kargbo’s request for issuance of summons (doc. no. 24)
as a motion requesting service upon Attorney Kirby.

That motion

(doc. no. 24) is DENIED.
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge
January 31, 2012
cc:

Abu B. Kargbo, pro se
John A. Curran, Esq.

LBM:nmd

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