Escobar v. NH State Prison, Warden et al
Filing
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ORDER Directing Clerk to Make Service. The Clerk's office is directed to serve the N.H. Office of the Attorney General ("AG"), as provided in the Agreement of Acceptance of Service, electronic copies of the docum ents as outlined. Motion to Amend (Doc. No. 12); granted and construed as an addendum to the complaint. Motion to Release Medical Records (Doc. No. 6); denied without prejudice. Defendant to answer within 21 days of service. So Ordered by Magistrate Judge Landya B. McCafferty.(ko)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John M. Escobar, III
v.
Civil No. 12-cv-167-JL
Richard Gerry, Warden,
New Hampshire State Prison et al.1
O R D E R
John M. Escobar, an inmate at the New Hampshire State
Prison (“NHSP”) has filed a complaint (doc. no. 1), a motion to
amend the complaint (doc. no. 12), and a motion for preliminary
injunction (doc. no. 13),2 alleging that NHSP employees and
officials have violated his federal constitutional and state law
rights.
Because Escobar is a prisoner, the matter is before the
1
Escobar has named the following defendants to this action:
New Hampshire Department of Corrections Commissioner William
Wrenn; and New Hampshire State Prison (“NHSP”) employees: Warden
Richard Gerry, Lt. Greenwood (first name unknown (“FNU”)); Lt.
Santo Fiorillo; Cpl. Mike Miller; Nurse Brad Bowden; Corrections
Officers FNU Hazard, FNU McDonald, FNU Thurber, and FNU Hill;
and NHSP inmate Timothy Zanis.
2
The factual assertions contained in the complaint (doc. no.
1), the motion to amend the complaint (doc. no. 12), and the
motion for injunctive relief (doc. no. 13) filed by Escobar are
considered, in the aggregate, to be the allegations in the
complaint in this matter for all purposes. While the factual
allegations in the motion for injunctive relief will be
considered as part of the complaint, I have recommended that the
request for injunctive relief be denied in the report and
recommendation issued simultaneously with this order.
court for preliminary review to determine whether it states any
claim upon which relief might be granted.
See 28 U.S.C.
§ 1915A(a); United States District Court District of New
Hampshire Local Rule (“LR”) 4.3(d)(2).
Also before the court is
Escobar’s motion to release medical records (doc. no. 6).
Motion to Amend (Doc. No. 12)
The motion to amend (doc. no. 12) is granted and construed
as an addendum to the complaint.
The factual allegations
therein will be considered to be part of the complaint for all
purposes.
Motion to Release Medical Records (Doc. No. 6)
Escobar seeks a court order directing the prison to provide
him with a free copy of his medical records pursuant to Fed. R.
Civ. P. 26, which governs discovery in a civil action.
Because
discovery in this matter has not yet commenced, the motion is
premature and is therefore denied without prejudice to renewal
if the documents requested are discoverable and not provided in
the normal course of discovery.3
3
Escobar also challenges the constitutionality of the prison
charge of twenty cents per page for copies of medical records.
Because the motion is denied on other grounds, the court need
not address the issue at this time.
2
Service
For reasons fully explained in a report and recommendation
issued this date (“the R&R”), the court finds that Escobar has
stated Eighth Amendment and state law tort claims upon which
relief might be granted against NHSP Corrections Officer Hazard.4
Accordingly, the Clerk=s office is directed to serve the New
Hampshire Office of the Attorney General (“AG”), as provided in
the Agreement on Acceptance of Service, electronic copies of the
R&R, this order, the complaint (doc. no. 1), the motion to amend
the complaint (doc. no. 12), and the motion for injunctive
relief (doc. no. 13).
See LR 4.3(d)(2)(C).
Within thirty days
from receipt of these materials, the AG will submit an
Acceptance of Service notice to the court specifying whether the
defendant has authorized the AG to receive service on his
behalf.
When the AG files the Acceptance of Service, service
will be deemed made on the last day of the thirty-day period.
If the defendant does not authorize the AG to receive
service on his behalf, or the AG declines to represent the
defendant, the AG shall, within thirty days from receipt of the
aforementioned materials, provide to the court the last known
address of the defendant.
In that event, the Clerk’s office is
4
In the R&R, the court recommends dismissal of the remaining
claims and defendants in the complaint.
3
instructed to complete and issue a summons for the defendant,
using the last known address provided, and forward the summons,
along with the above-listed documents, to the U.S. Marshal to
complete service on the defendant in accordance with this Order
and Fed. R. Civ. P. 4(c)(3).
Defendant is instructed to answer or otherwise plead within
twenty days of service.
See Fed. R. Civ. P. 12(a)(1)(A).
Plaintiff is instructed that all future pleadings, written
motions, notices, or similar papers shall be served directly on
the defendant by delivering or mailing the materials to the
defendant or his attorney(s), pursuant to Fed. R. Civ. P. 5(b).
SO ORDERED.
__________________________
Landya McCafferty
United States Magistrate Judge
September 27, 2012
cc:
John M. Escobar, III, pro se
LBM/jba
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