Moulton v. Carroll County Department of Corrections et al

Filing 33

CORRECTED ORDER directing service to be made by the US Marshal So Ordered by Magistrate Judge Landya B. McCafferty.(mm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Richard Moulton
v.

Civil No. 11-cv-391-PB

Carroll County Department
of Corrections, et al.

CORRECTED ORDER1
Before the court is Richard Moulton’s complaint (doc. no.
1), filed pursuant to 42 U.S.C. § 1983, alleging that defendants
have violated his federal constitutional rights during his
detention in the custody of the Carroll County Department of
Corrections (“CCDC”), and a motion to amend the complaint (doc.
no. 20).

The motion to amend is granted as it was filed at a

time when plaintiff was entitled to amend the complaint as a
matter of course.

See Fed. R. Civ. P. 15(a)(1).

The complaint, as amended, is before the court for
preliminary review to determine whether it states any claim upon
which relief may be granted.

See 28 U.S.C. § 1915A(a)

(requiring court to conduct preliminary screening of prisoner
complaints); United States District Court for the District of
1

The court initially issued an order granting the motion to
amend the complaint (doc. no. 20) and directing service of the
complaint. The court now issues this corrected order to clarify
what documents need be served by the U.S. Marshal’s office.

New Hampshire Local Rule (“LR”) 4.3(d)(2) (authorizing
magistrate judge to conduct preliminary review of cases filed in
forma pauperis by prisoners).2

The court construes the complaint

to consist of all of the assertions contained in Moulton’s
filings in this matter to date, numbered in the docket as
numbers 1, 4, 11, 18, 20 and 24.

Further, the court considers

as part of the complaint documents filed in connection with the
preliminary injunction hearing (doc. nos. 10, 16 and 23), as
Moulton has not contested the validity or authenticity of those
documents.

The court considers all of the above-referenced

documents (doc. nos. 1, 4, 10, 11, 16, 18, 20, 23 and 24), in
the aggregate, to be the complaint in this matter for all
purposes.
For reasons fully discussed in a Report and Recommendation
issued simultaneously with this Order, the court finds that
Moulton has stated claims upon which relief might be granted
against defendants Fowler, Johnson, and County Commissioners
2

Moulton’s original complaint (doc. no. 1) contains a
request for preliminary injunctive relief. That request was
construed as a motion for a preliminary injunction. Moulton
also filed an additional motion seeking injunctive relief (doc.
no. 24) which was construed as a supplement to the initial
request for an injunction. Moulton’s request for injunctive
relief (doc. nos. 1 and 24) have been referred to this
Magistrate Judge for hearing, findings, and a recommendation as
to disposition (doc. no. 5 and 25). The court’s recommended
disposition of that request is included in the Report and
Recommendation issued simultaneously with this Order.
2

David Sorenson, Asha Kenney, and Dorothy Solomonson, in their
official capacities, alleging:
1.
Defendants’ violation of Moulton’s Fourteenth
Amendment right to adequate dental care to the extent he
challenges the failure of the defendants to provide him
with fillings for his cavities; and
2.
A state law negligence claim challenging the
defendants’ failure to provide Moulton with fillings, root
canals, and crowns.
The file contains summons forms completed by plaintiff.
The Clerk’s office is directed to issue the summonses and
forward to the United States Marshal for the District of New
Hampshire (the “U.S. Marshal’s office”): the summonses; copies
of the complaint (doc. nos. 1, 4, 11, 18, 20, 24)3; the Report
and Recommendation issued this date; and this Order.

Upon

receipt of the necessary documentation, the U.S. Marshal’s
office shall effect service upon Jason Johnson, Michael Fowler
as well as on Carroll County.4

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

4(j)(2); N.H. Rev. Stat. Ann. § 510:10 (requiring service upon
county be made by serving one of the county commissioners and
3

The U.S. Marshal’s office need not serve documents 10, 16,
and 23, as they were initially filed by defendants under seal,
and defendants are therefore in possession of the documents, and
are also able to gain access to those documents through the
court docket.
4

Serving the County Commissioners in their official
capacities is another way of serving Carroll County itself.
Accordingly, in this order, service is directed on the County
rather than on each individual Commissioner.
3

the treasurer for the county).

Defendants are instructed to

answer or otherwise plead within twenty-one days of service.
See Fed. R. Civ. P. 12(a)(1)(A).
Moulton is instructed that all future pleadings, written
motions, notices, or similar papers shall be served directly on
the defendants by delivering or mailing the materials to them or
their attorney(s), pursuant to Fed. R. Civ. P. 5(b).

Conclusion
The motion to amend the complaint (doc. no. 20) is granted.
Service of the complaint (doc. nos. 1, 4, 11, 18, 20, 24) shall
be effected as specified above.
SO ORDERED.

_______________________________
Landya B. McCafferty
United States Magistrate Judge
Date:
cc:

January 3, 2012

Richard Moulton, pro se
Stephen A. Murray, Esq.

4