Roy v. NH Department of Corrections, Commissioner et al

Filing 58

///ORDER terminating as moot 42 Motion to Dismiss; denying 49 Motion to Amend 1 Complaint. The remaining federal claim in the case, alleging FirstAmendment retaliation based on a grievance, is dismissed for failure to s tate a claim. The court declines to exercise supplemental jurisdiction over the plaintiffs claim for intentional infliction of emotional distress, which is dismissed without prejudice. Clerk to enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Steven J. Roy
v.

Civil No. 12-cv-303-JD
Opinion No. 2013 DNH 113

William Wrenn, Commissioner
of the New Hampshire Department
of Corrections, et al.
O R D E R
Steven J. Roy, who is incarcerated and proceeding pro se and
in forma pauperis, filed a civil rights action against the New
Hampshire Department of Corrections, Commissioner William Wrenn,
New Hampshire State Prison Warden Richard Gerry, and New
Hampshire State Prison Major Jon Fouts.

Roy now moves for leave

to amend his amended complaint to add five new defendants and
seven new claims, most of which pertain to new allegations of
copyright infringement.

The defendants object to Roy’s motion

for leave to amend on the grounds that the new claims and
defendants do not meet the requirements for joinder and will not
survive review under 28 U.S.C. § 1915A.

Standard of Review
Under Federal Rule of Civil Procedure 15(a)(2), “[t]he court
should freely give leave [to amend the complaint] when justice so

requires.”

The liberal standard under Rule 15(a)(2) does not

mean that all requests to amend will be granted.

Manning v.

Boston Med. Ctr. Corp., --- F.3d ---, 2013 WL 3942925, at *22
(1st Cir. Aug. 1, 2013).

Instead, “a district court may deny

leave to amend when the request is characterized by undue delay,
bad faith, futility, or the absence of due diligence on the
movant’s part.”

Nikitine v. Wilmington Tr. Co., 715 F.3d 388,

390 (1st Cir. 2013).
A proposed amendment to a complaint is futile if, as
amended, “the complaint still fails to state a claim.”

Abraham

v. Woods Hole Oceanographic Inst., 553 F.3d 114, 117 (1st Cir.
2009).

Therefore, review for futility is identical to review

under Federal Rule of Civil Procedure 12(b)(6).

Edlow v. RBW,

LLC, 688 F.3d 26, 40 (1st Cir. 2012).
Further, when, as here, the plaintiff is a prisoner
proceeding in forma pauperis, the court must screen the claims
before allowing the action to proceed.

18 U.S.C. §§

1915(e)(2)(B) & 1915A; Villar v. Buttermore, 2013 WL 3945914, at
*5 (D.N.H. July 31, 2013).

The standard used for review under

§ 1915(e)(2) and § 1915A, to determine whether the complaint
should be dismissed for failing to state a claim, is the same
standard as is used for a motion under Federal Rule of Civil
Procedure 12(b)(6).

Villar, 2013 WL 3945914, at *5; see also
2

Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013).

For

purposes of screening, the court construes pro se pleadings
generously, Haines v. Kerner, 404 U.S. 519, 520 (1972), but the
complaint “must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face,”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Under the

plausibility standard, the court does not consider conclusory
legal allegations and conclusions.

Shay v. Walters, 702 F.3d 76,

82 (1st Cir. 2012).

Background
Roy filed suit on August 7, 2012, and filed an amended
complaint on September 5, 2012.
injunction.

He also sought a preliminary

On preliminary review, the magistrate judge issued

reports and recommendations to deny the motion for a preliminary
injunction and to dismiss the action, which were approved.

In

response to Roy’s motion for reconsideration, the court allowed
his claim under 42 U.S.C. § 1983 that Wrenn, Gerry, and Fouts
retaliated against him in violation of the First Amendment.

The

court also allowed Roy’s state law claim of intentional
infliction of emotional distress.
Roy filed a motion for leave to amend the amended complaint
on July 5, 2013.

In support of the motion, Roy states that while
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in prison he designed, wrote, and copyrighted software, known as
“JOINT”, with another inmate, William Johnson.

He further states

that he knew that the prison was infringing the copyright but
lacked evidence to support the claim because “the defendants and
their agents took affirmative steps to hinder his ability to
detect and litigate their infringement of his copywritten
software.”

Roy represents that he learned on May 13, 2013, that

the defendants might still be using his software.

He then

alerted defense counsel and sent a “‘cease and desist’ demand to
the staff member who was overseeing the infringing.”
In the proposed second amended complaint, Roy alleges eight
claims, primarily pertaining to the JOINT software that he claims
to have developed with William Johnson and the copyright that he
asserts.1

Without differentiating among the defendants, Roy

asserts claims of copyright infringement, retaliation against him
for asserting his copyright, conspiracy to infringe his
copyright, criminal copyright infringement, misappropriation or
unjust enrichment (for use of copyrighted software), loss or
damage to his legal materials, and intentional infliction of

1

In his reply to the defendants’ objection, Roy adds a ninth
claim for relief that Wrenn violated the Ex Post Facto Clause.
The claim pertains to allegations that the prison changed its
policy in the spring of 2013 so that hooded sweatshirts would be
deemed contraband as of January 1, 2014. Claims cannot be
alleged in a reply.
4

emotional distress.2

In claim four, Roy alleges that Lieutenant

James Brown failed to protect him from danger caused by another
inmate.
Roy explains in support of his motion for leave to amend
that the transaction that was at the core of his claims in the
amended complaint was the allegedly false disciplinary report.
Based on more recent events, however, Roy has changed the focus
of his claims from the allegedly false disciplinary report to
infringement of his copyright.

He now believes that the

allegedly false disciplinary report was part of the defendants’
efforts to cover up the infringement.

Therefore, Roy’s claims in

the second amended complaint are mostly based on the alleged
copyright infringement.

Discussion
Roy moves for leave to amend the amended complaint to add
new parties and new claims pertaining to alleged copyright
infringement.

The government opposes the motion, arguing that

under Rules 18(a) and 20, Roy’s new claims should not be allowed
and also asserts that the new claims will not survive review
under 28 U.S.C. § 1915A.

2

In his reply to the defendants’ objection, Roy assigns
particular defendants to his new proposed claims.
5

Under Rule 18(a), “[a] party asserting a claim . . . may
join, as independent or alternative claims, as many claims as it
has against an opposing party.”

Given the breadth of Rule 18,

misjoinder of claims is no longer a viable issue in federal
practice.

6A Charles Alan Wright, Arthur R. Miller, Mary Kay

Kane & Richard L. Marcus, Federal Practice & Procedure § 1582 (3d
ed. 2010).

Under Rule 20(a)(2), however, defendants may be

joined in one action only if the claims are asserted against them
“jointly, severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or series of
transactions or occurrences” and the claims involve one or more
common questions of law or fact.

Therefore, Rule 20(a)(2) does

not allow joinder of different defendants with unrelated claims
against them.

Diaz v. Spencer, 2013 WL 1759013, at *3 (D. Mass.

Apr. 22, 2013).
The defendants currently in the case are Wrenn, Gerry, and
Fouts.

Roy has only two remaining claims:

(1) a § 1983 claim

that the defendants retaliated against Roy in violation of the
First Amendment by initiating a false disciplinary charge against
him and finding him guilty on the charge without required due
process because Roy filed a grievance threatening litigation and
(2) a state law claim of intentional infliction of emotional
distress based on the disciplinary charge.
6

A.

Federal Claims
The only federal claim that was allowed in Roy’s amended

complaint is his First Amendment retaliation claim that the
defendants retaliated against him because he filed a grievance.
In the proposed second amended complaint, Roy alleges a new
retaliation claim based on his copyright notice in the JOINT
software.

Roy also alleges federal claims of copyright

infringement against a new defendant.

1.

Retaliation

In his amended complaint, Roy alleges that the defendants
retaliated against him for filing a grievance by fabricating
anonymous false accusations, moving him to SHU, filing a false
disciplinary report, providing an insufficient hearing, and
attempting to move him to the Northern Correctional Facility.
In his proposed second amended complaint and in support of his
motion for leave to amend, however, Roy explains that he has
learned that the notice of his copyright in the JOINT software
was the motive for the defendants’ retaliation.

As such, Roy

seeks to pursue a new retaliation claim based on different
occurrences that refutes the grounds alleged previously.
Based on the allegations in the proposed second amended
complaint and Roy’s statements supporting his motion for leave to
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amend, the retaliation claim in the amended claim is no longer
viable.

Therefore, the retaliation claim as alleged in the

amended complaint is dismissed.
Roy’s First Amendment retaliation claim is Claim #2 in the
proposed second amended complaint:
Defendants performed a series of overt acts designed to
enable them to control JOINT and/or conceal their
infringement of JOINT. The overt acts included
ejecting Johnson from the North Yard on 3/8/2012,
ejecting the plaintiff from the North Yard on 6/4/2012,
imposing a false DR and SHU trip on the plaintiff on
7/3/2012 (with a total failure to investigate), firing
Johnson on 7/12/2012, and blacklisting the plaintiff
from being “anywhere near computers” in August 2012.
These acts retaliated for the plaintiff and Johnson
asserting a copyright in JOINT.
“[T]he First Amendment bars retaliation for protected
speech.”

Crawford-El v. Britton, 523 U.S. 574, 593 (1998); D.B.

ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 41 (1st Cir.
2012).

To state a First Amendment retaliation claim, a plaintiff

must allege facts to show “that (1) he or she engaged in
constitutionally protected conduct, (2) he or she was subjected
to an adverse action by the defendants, and (3) the protected
conduct was a substantial or motivating factor in the adverse
action.”

D.B. ex rel. Elizabeth B., 675 F.3d at 43.

The protected speech Roy alleges is a notice of copyright
included in the JOINT software.

Some speech and expressive

actions such as filing grievances and legal actions, as alleged
8

in the amended complaint, are protected activity.
Beard, 645 F.3d 45, 48 (1st Cir. 2011).

Hannon v.

A notice of a copyright,

standing alone, however, does not appear to implicate First
Amendment protections.3
In addition, Roy’s allegations about actions taken by the
defendants do not show retaliation.

Any actions against Johnson

are inapposite to retaliation against Roy.

Further, as alleged,

the claim is that the defendants took certain actions to control
the JOINT software and to conceal infringement, not to retaliate
against Roy for asserting a copyright.

Although Roy includes a

conclusory statement that the actions are retaliatory, his
factual allegations do not support that cause of action.
Therefore, Roy has not alleged that the defendants took adverse
actions against him because he engaged in constitutionally
protected conduct.
Roy has not stated a claim for First Amendment retaliation
as alleged in Claim #2 of the proposed second amended complaint.
Because the retaliation claim alleged in the amended complaint is
dismissed, no actionable § 1983 claim is alleged.

3

The Copyright Act and related legislation protect
copyrights. See Eldred v. Ashcroft, 537 U.S. 186, 219-21 (2003).
The relationship between the Copyright Act and the First
Amendment is complex and involves issues not raised here. See
Golan v. Holder, 132 S. Ct. 873, 889-90 (2012).
9

2.

Infringement Claims

Roy alleges copyright infringement and criminal copyright
infringement against Fred Nichols, Director of GraniteCor
Industries in Claims 1 and 5.4

Fred Nichols is a new defendant,

and copyright infringement is a new occurrence that is unrelated
to the claims against the original defendants, Wrenn, Gerry, and
Fouts.

Therefore, Nichols is not properly joined in this action

under Rule 20(a)(2).

3.

Other Claims

Roy alleges that an officer at the New Hampshire State
Prison, Lieutenant Brown, failed to protect him from the inmate
who brought the charges against Roy which lead to the allegedly
false disciplinary report.
apparent.

The legal basis for the claim is not

To the extent that Roy intended to allege a federal

claim under § 1983 that Brown violated his Eighth Amendment right
to be protected from serious harm, he has not alleged facts to
support that claim.

See Farmer v. Brennan, 511 U.S. 815, 834

(1994) (requiring deliberate indifference to prisoner’s right to
protection).

4

No private right of action exists to enforce criminal
copyright infringement. See Kelly v. L.L. Cool J., 145 F.R.D.
32, 39 (S.D.N.Y. 1992).
10

In the proposed second amended complaint and in his reply to
the defendants’ objection to his motion to amend, Roy discusses
his theory that Wrenn violated the Ex Post Facto Clause in
Article 1 of the Constitution by announcing a new policy that
would ban hooded sweatshirts in the prison as of January 1, 2014.
Roy did not allege a claim based on those allegations,
however.

In any case, the potential change in policy has not yet

occurred, making Roy’s claim premature.

B.

State Law Claims
The remaining claims in the second amended complaint are

brought under state law.5

Because Roy does not allege a viable

federal claim in his proposed second amended complaint, the court
would decline to exercise supplemental jurisdiction over the
state law claims.

28 U.S.C. § 1367(c)(3).

The only federal claim that was alleged in the amended
complaint, the First Amendment retaliation claim against Wrenn,
Gerry, and Fouts is dismissed for failure to state a claim based
on the allegations in the proposed second amended complaint.

5

Roy’s claim of conspiracy to infringe his copyrights is a
state law claim that is preempted by the Copyright Act. Tire
Eng’g & Distribution, LLC v. Shandong Linglong Rubber Co., Ltd.,
682 F.3d 292, 312 (4th Cir. 2012).
11

Therefore, the court also declines to exercise supplemental
jurisdiction over the intentional infliction of emotional
distress claim alleged in the amended complaint.

See

§ 1367(c)(3).

Conclusion
For the foregoing reasons, the plaintiff’s motion for leave
to file a second amended complaint (document no. 49) is denied.
The remaining federal claim in the case, alleging First
Amendment retaliation based on a grievance, is dismissed for
failure to state a claim.
The court declines to exercise supplemental jurisdiction
over the plaintiff’s claim for intentional infliction of
emotional distress, which is dismissed without prejudice.
The defendants’ motion to dismiss official capacity claims
(document no. 42) is terminated as moot.

12

The clerk of court shall enter judgment accordingly and
close the case.

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
August 27, 2013
cc:

Steven J. Roy #68033, pro se
Nancy J. Smith, Esquire

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