Runyon v. Lee et al

Filing 52

ORDER Directing US Marshal to Make Service. So Ordered by Magistrate Judge Landya B. McCafferty.(vln)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Fred Runyon
v.

Civil No. 12-cv-290-PB

Dennis Lee et al.1

O R D E R
Before the court are four motions (doc. nos. 35, 41, 43,
and 44), filed by plaintiff, Fred Runyon, seeking leave to add
new allegations, claims, and requests for relief to this action.2
Defendants’ objection addresses the motions (doc. nos. 41, 43,
and 44) that were filed after they appeared and answered the
complaint.

See Obj. (doc. no. 47).

1

Defendants who have been served are Nashua Police Officers
Dennis Lee, Clark Gaphardt, William Silva, Peter LaRoche, and
Sgt. Thomas Bolton.
2

Local Rule 15.1 does not allow a plaintiff to state his
claims in bits and pieces, as plaintiff has done so far in this
case. A plaintiff seeking to amend a complaint must restate all
of his allegations in one document – the proposed amended
complaint – and file that document as an exhibit to a motion to
amend, highlighting the new material and explaining why the new
material was not in the initial complaint. See LR 15.1. The
court expects plaintiff to comply with LR 15.1, and to avoid
filing serial motions to amend, if he seeks to add claims or
factual allegations to this action in the future.

Discussion
I.

New Pendent Tort Claims
For reasons stated in the report and recommendation issued

this date (“R&R”), the court grants the motion to add pendent
state law intentional tort claims of assault and battery (doc.
no. 35) to this lawsuit.

Those claims are asserted against the

defendant officers and their employer, the Nashua Police
Department (“NPD”), a municipal agency.
In summary, the following claims for relief are stated in
the complaint and in the complaint addenda (doc. nos. 1, 7-9, 13,
15-22, 27, 29-31, 35-37, and 40-42)3:

Claim 1. One or more unnamed John Doe NPD officers
violated Runyon’s rights under the Fourth Amendment in
November 2011, by using unreasonable force in arresting
him, in that they shocked him with stun guns multiple
times, while repeatedly kicking and striking him, rendering
each of those officers individually liable to Runyon under
42 U.S.C. § 1983.
Claim 2. NPD Officers Peter Laroche, Dennis Lee, and other
unnamed officers violated Runyon’s rights under the Fourth
Amendment by using unreasonable force while arresting and
transporting Runyon to the NPD, in that, on February 24,
2012, after searching and handcuffing Runyon: (a) Lee and
Laroche deliberately rammed Runyon’s head into a wire cage
as they put him into a police cruiser, injuring his head;
and (b) Lee and other NPD officers repeatedly slammed
Runyon against a door upon their arrival at the NPD,
3

The court has deleted the reference to “November 11” as the
date of the 2011 arrest, noting, without making any finding,
that defendants asserted in their answer that the NPD arrested
Runyon on November 17, 2011.

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injuring Runyon’s ribs, rendering each of those officers
individually liable to Runyon under 42 U.S.C. § 1983.
Claim 3. One or more unnamed John Doe NPD officers, and
their employer, the NPD, are liable to Runyon under state
law, for the intentional torts of assault and battery, for
the officers’ use of unreasonable force in arresting Runyon
in November 2011, in that, knowing that their conduct was
likely to injure Runyon, the officers shocked Runyon with
stun guns multiple times while repeatedly kicking and
striking him.
Claim 4. NPD Officers Peter Laroche, Dennis Lee, and other
unnamed NPD officers, and their employer, the NPD, are
liable to Runyon under state law, for the intentional torts
of assault and battery, for the officers’ use of
unreasonable force in arresting and transporting Runyon to
the NPD, in that, knowing that their actions would injure
Runyon: (a) Lee and Laroche deliberately rammed Runyon’s
head into a wire cage as they put him into a police
cruiser, injuring his head; and (b) Lee and other NPD
officers repeatedly slammed Runyon against a door upon
their arrival at the NPD, injuring Runyon’s ribs.
II.

New Allegations
For reasons stated in the R&R, the motion regarding “self-

defense” (doc. no. 41) is construed as seeking leave to add new
allegations to the complaint, relating to Runyon’s November 2011
arrest.

That motion (doc. no. 41) is granted.

The following

allegations are deemed asserted in this action, with respect to
the November 2011 arrest: (a) the unnamed officers did not
identify themselves as police officers; (b) Runyon did not know
that they were officers; and (c) Runyon fought back when the
officers assaulted him in order to protect himself.

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III. Requests for Relief
The motions docketed as Documents Nos. 43-44 are construed
to be complaint addenda.
requested by Runyon.

Those documents specify the relief

Without commenting on whether such relief

could be awarded in this lawsuit, the court directs the clerk to
redocket those motions as complaint addenda.
IV.

Service
A.

Claims 1 and 3

Runyon has not named the responsible officers with respect
to the November 2011 arrest (Claims 1 and 3 above).

Runyon has

shown that he is not presently able to identify those officers.
The court concludes at this time that the discovery process is
reasonably likely to yield the officers’ names.

The court

therefore directs service of Claims 1 and 3, above, upon two
unnamed “John Doe” NPD officers, and directs service of Claim 3
upon their employer, the NPD, an agency of the City of Nashua.
B.

Claims 2 and 4

The § 1983 claim relating to the February 24, 2011, arrest
(Claim 2) has been served upon NPD Officers Lee and LaRoche.
For reasons stated in the R&R, the court directs service of the
pendent intentional tort claim (Claim 4) upon the same officers
and their employer, the NPD, an agency of the City of Nashua.

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C.

Instructions to Clerk and Parties

The clerk’s office is directed to complete and issue
summonses for the following new defendants: NPD and NPD Officers
John Doe 1 and John Doe 2, using the NPD’s address for service:
O (Zero) Panther Drive, Nashua, NH 03062.

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 addenda thereto (doc. nos. 1, 7-9, 13, 15-22, 27,
29-31, 35-37, and 40-46); the February 14, 2013, report and

recommendation (doc. no. 32); the March 8, 2013, order (doc. no.
38); the report and recommendation issued this date; and this
order.

Upon receipt of the necessary documentation, the U.S.

Marshal’s office shall serve defendants, pursuant to Fed. R.
Civ. P. 4(c)(3), 4(e), and 4(j)(2).

See also N.H. Rev. Stat.

Ann. § 510:10.
Defendant NPD and NPD Officers John Doe 1 and John Doe 2
are instructed to answer or otherwise plead within twenty-one
days of service.

See Fed. R. Civ. P. 12(a)(1)(A).

Defendant

NPD Officers Lee, LaRoche, Gaphardt, Silva, and Sgt. Bolton are
directed to file their answer or other response to the new
allegations and claims added to this lawsuit through this order,
within twenty-eight days of the date of this order.

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Runyon 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).
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge
April 9, 2013
cc:

Fred Runyon, pro se
Brian Cullen, Esq.

LBM:nmd

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