Lemay v. NH Department of Safety, Division of State Police, Sex Offender Registry

Filing 29

ORDER denying 25 Motion to Amend 8 Amended Complaint. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Harvey Lemay
v.

Civil No. 11-cv-185-JD

New Hampshire Department
of Safety, et al.
O R D E R
Harvey Lemay, proceeding pro se and in forma pauperis,
brought a civil rights action, alleging claims that arose from
the requirement that he register as a sex offender.

Following

initial review under 28 U.S.C. § 1915(e)(2) and review of Lemay’s
subsequent amendment, his amended complaint was allowed to the
extent he brought claims against New Hampshire State Troopers
Rocky, McDonald, and Rowe that his Fourteenth Amendment due
process rights were violated by requiring him to register as a
sex offender.

Lemay now moves to amend his complaint to bring

claims against Denise Perry and Kathy Cliver.

The defendants did

not file a response to the motion to amend.
Under the local rules of this district, a party who moves to
amend his complaint must attach the proposed amended complaint to
the motion; identify the new allegations, claims, and parties;
and explain why the new allegations, claims, and parties were not
included in the prior complaint.

LR 15.1.

Lemay failed to

attach the proposed amended complaint and failed to explain why

he did not include Perry and Cliver in his prior amended
complaint.

Therefore, Lemay did not properly move to amend.

Even if the allegations in the motion were construed as the
allegations Lemay would provide in an amended complaint, the
motion would be denied.

Although “[l]eave to amend is freely

given when justice so requires, Fed. R. Civ. P. 15(a), . . .
courts have discretion to deny such motions under appropriate
circumstances, including undue delay and futility.”

Edlow v.

RBW, LLC, 688 F.3d 26, 39 (1st Cir. 2012) (internal quotation
marks omitted).

Denial of a motion to amend as futile is

appropriate if the proposed amendments fail to state a claim
under the standard used for Federal Rule of Civil Procedure
12(b)(6).

Platten v. HG Bermuda Exempted Ltd., 437 F.3d 118, 132

(1st Cir. 2006).

Therefore, the plaintiff must allege “enough

facts to state a claim to relief that is plausible on its face.”
Sanchez v. United States, 671 F.3d 86, 107 (1st Cir. 2012).
To the extent that Lemay intended to allege that Perry and
Cliver violated his Fourteenth Amendment due process rights, he
must allege facts to plausibly show that they mistakenly or
falsely classified him as a sex offender and required him to
register as a sex offender without adequate due process.

See

Brown v. Montoya, 662 F.3d 1152, 1166-67 (10th Cir. 2011).
Adequate due process depends on the circumstances.
Livingston, 607 F.3d 392, 409 (5th Cir. 2010).

2

See Meza v.

In the motion to amend, Lemay alleges that “Perry and
Cliver, acting as state actors under color of the law by way of a
hearing, determined that Mr. Lemay had committed the crimes of
felonious sexual assault and sexual assault . . . .”
at 1.

Doc. no. 25

As an attachment to the motion, Lemay filed the report of

the hearings examiner at the New Hampshire Department of Safety,
dated September 24, 2009.

The report states that Lemay requested

a hearing on the question of whether he was subject to lifetime
sex offender registration based on a Massachusetts conviction.
Lemay argued that he was being required to register based on a
more serious offense than the offense to which he pleaded guilty.
Lemay represented himself, and Trooper Rocky presented the
state’s case.

Denise Perry, Supervisor, Sexual Offender Records

for the New Hampshire State Police, was present at the hearing.
Evidence introduced at the hearing included the Massachusetts
criminal complaint against Lemay, dated September 10, 1999;
Lemay’s waiver form; and the victim impact statement.

The

hearings officer found, based on information provided by Trooper
Rocky, that the offense to which Lemay pleaded guilty in
Massachusetts was reasonably equivalent to RSA 632-A:3-II,
felonious sexual assault of a person over thirteen and younger
than sixteen.

Based on stated findings, the hearings officer

sustained the decision of the state to require Lemay to register
for his lifetime as a sexual offender.

3

In his motion to amend, Lemay does not allege any
deficiencies in the process afforded him through the hearing.

No

deficiencies are apparent from the materials he filed with his
motion.

Therefore, as presented in the motion to amend, his

claims against Perry and Cliver are futile.

Conclusion
For the foregoing reasons, Lemay’s motion to amend (document
no. 25) is denied.
SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
November 26,
cc:

2012

Harvey Lemay, pro se
David M. Hilts, Esq.
Kevin H. O’Neill, Esq.

4