Kelly v. Strafford County Department of Corrections, Superintendent et al

Filing 38

ORDER: Granting in part and denying in part 29 Motion to Amend 1 Complaint; denying 32 Motion to Stay; denying without prejudice 34 Motion to Appoint Counsel; granting 35 Motion to Extend Time to Object/Respond to 31 MOTION for Summary Judgment and to Extend the Trial Day. Clerk's Office to redocket Amended Complaint and contact Attorney Belobrow re acceptance of service as outlined. So Ordered by District Judge Landya B. McCafferty.(ko)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Howard D. Kelly
v.

Civil No. 13-cv-107-LM
Opinion No. 2014 DNH 101

Warren Dowaliby et al.

O R D E R
Before the court are the following matters1:


Plaintiff Howard D. Kelly’s motion to amend (doc. no.
29) the complaint to add new defendants and claims;



Defendants’ motion to stay this action (doc. no. 32)
until this court rules on defendants’ December 2013
and March 2014 motions for summary judgment;



Plaintiff’s motion (doc. no. 35), for additional time
to object to the March 2014 motion for summary
judgment and to disclose experts; and



Plaintiff’s motion for appointment of counsel (doc.
no. 34).

Defendants have objected to each of plaintiff’s motions.
Document Nos. 30, 36, and 37).

See

Plaintiff has not responded to

defendants’ motion for a stay.

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Also pending are two motions for summary judgment filed by
defendants (doc. nos. 24 and 31). Those motions will be
addressed at a later date.

Background
Kelly was incarcerated at the Strafford County House of
Corrections (“SCHC”) as a federal pretrial detainee from July
17, 2008, until March 12, 2010.

Kelly filed this action in

February 2013.
Kelly asserts that while he was at the SCHC, he suffered
from a seizure disorder, and that medical providers at the SCHC
denied him previously prescribed anti-seizure medication.

Upon

completion of this court’s preliminary review of the complaint
under 28 U.S.C. § 1915A, this court dismissed a Fourteenth
Amendment supervisory liability claim asserted against former
SCHC Superintendent Warren Dowaliby and allowed the following
claim to proceed against three members of the SCHC medical
staff:
Kelly was denied his Fourteenth Amendment due process
right to adequate medical care during pretrial
detention, because defendants Tracy Warren, Rebecca
Eischen, and Dawn Dow, with deliberate indifference,
failed to treat Kelly’s seizure disorder, a serious
medical need.
See Order (doc. no. 19) (approving Report and Recommendation
(doc. no. 9)).

Defendants Warren, Eischen, and Dow have moved

for summary judgment, on grounds set forth in two separate
motions for summary judgment, filed in December 2013 (doc. no.
24) and March 2014 (doc. no. 31).

2

Plaintiff has moved to amend the complaint to reassert a
supervisory liability claim under 42 U.S.C. § 1983 against
Dowaliby based on allegations that plaintiff specifically
notified Dowaliby in January 2009 that the medical staff had
failed to treat his seizure disorder.

Plaintiff’s motion also

seeks to add new defendants to that medical care claim, and to
assert additional conditions of confinement and First Amendment
retaliation claims against new defendants.
Discussion
I.

Motion to Amend
A.

Standard

Federal Rule of Civil Procedure 15(a)(2) provides that a
party who is no longer able to amend the complaint as of right
may amend only with the court’s leave, and that the court
“should freely give leave when justice so requires.”
Civ. P. 15(a)(2).

Fed. R.

“To the extent a proposed amendment would add

new parties, the motion is technically governed by [Federal Rule
of Civil Procedure] 21, which provides that ‘the court may at
any time, on just terms, add or drop a party,’ rather than Rule
15(a).”

Garcia v. Pancho Villa’s of Huntington Vill., Inc., 268

F.R.D. 160, 165 (E.D.N.Y. 2010) (citations omitted).

However,

the “same standard of liberality” applies under either rule.
Id.

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The court may deny a motion to amend “‘for any adequate
reason apparent from the record,’” including futility of the
proposed amendment.

Todisco v. Verizon Commc’ns, Inc., 497 F.3d

95, 98 (1st Cir. 2007) (citation omitted).

In evaluating

whether pro se plaintiff Kelly’s proposed complaint amendment
states any plausible claim for relief, the court applies the
same standard applied in its preliminary review of the original
complaint, which is set forth in the June 3, 2013, report and
recommendation (doc. no. 9).

See generally Adorno v. Crowley

Towing & Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006)
(applying Fed. R. Civ. P. 12(b)(6) standard to determine if
proposed amendment is futile).
B.

Medical Care Claim

The applicable standards for stating a viable Fourteenth
Amendment medical care claim are stated in the June 3, 2013,
report and recommendation (doc. no. 9), and need not be repeated
here.

Kelly seeks to add claims against ten unnamed SCHC

medical staff members (identified as John and Jane Does 1-10),
based on assertions that Kelly told each of those unnamed staff
members that he had experienced seizures while at the SCHC, but
that he received “little or no response from” them.

Kelly’s

allegations as to those unnamed medical staff members resemble
his allegations as to existing defendants Dow and Eischen, and

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the original complaint similarly alleged that unnamed SCHC
medical staff members were deliberately indifferent to his
seizure disorder.

The court allows this claim to proceed at

this time against ten unnamed SCHC medical staff members
identified as “John and Jane Does 1-10” as discovery is
reasonably likely to reveal the relevant names.2

See Martínez-

Rivera v. Sánchez Ramos, 498 F.3d 3, 8 (1st Cir. 2007); Wilson
v. Town of Mendon, 294 F.3d 1, 7 (1st Cir. 2002).

Kelly is

expected to use the discovery process to obtain those names, and
to move promptly to amend the complaint to substitute the
correct names, to avoid dismissal under Fed. R. Civ. P. 4(m).
Kelly further seeks to add a claim of supervisory liability
as to former Superintendent Dowaliby, for his acts and omissions
relating to his subordinates’ failure to treat Kelly’s seizure
disorder.

Specifically, Kelly alleges that in an appeal of a

disciplinary charge, in January 2009, Kelly informed Dowaliby
that he suffered frequent seizures and that the medical staff at
SCHC had failed to treat him in connection with those seizures.
Kelly further asserts that Dowaliby failed to respond to that
2

The parties have briefed a potentially dispositive motion
asserting that similar Fourteenth Amendment medical care claims
asserted against Warren, Dow, and Eischen are both time-barred
and precluded by the Prison Litigation Reform Act (“PLRA”), 42
U.S.C. § 1997e(a); those grounds for dismissal would appear to
apply equally to the claims that Kelly seeks to assert against
the John and Jane Doe defendants. The court expresses no
opinion at this time on the merits of that motion.
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information.

The facts alleged, if taken as true with all

reasonable inferences construed in Kelly’s favor, state a
plausible claim that Dowaliby’s failure to respond to specific
information regarding Kelly’s untreated seizure disorder
manifested deliberate indifference to a substantial risk of
serious harm, and further, led to the medical staff’s continuing
failure to treat Kelly.

Accordingly, the motion to amend is

granted to add a section 1983 claim of supervisory liability as
to Dowaliby, relating to his conduct with respect to the failure
to treat Kelly’s seizure disorder at the SCHC.3
C.

New Claims

In the proposed amended complaint, Kelly seeks to add new
claims that SCHC officers violated his Fourteenth Amendment
right to humane conditions of pretrial confinement, by
confiscating bedding, a second mattress, compression stockings,
and a second pillow which had been prescribed by the medical
department for Kelly’s use while he was at the SCHC in response
to his complaints of insomnia, painful legs, and swelling.
Kelly also asserts claims alleging that SCHC officers retaliated
against him for exercising his First and Fourteenth Amendment
rights to petition for a redress of grievances, and that SCHC
3

The court expresses no opinion in this order on whether
plaintiff’s claims relating to Dowaliby are time-barred or
restricted by the PLRA.
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supervisory officers Topham and Roy failed to train or
adequately supervise their subordinates.
All of the acts relating to the confiscation of prescribed
items and alleged retaliatory conduct occurred more than three
years before Kelly filed this action, and more than four years
before Kelly sought to amend the complaint to add those claims.
See Gorelik v. Costin, 605 F.3d 118, 121 (1st Cir. 2010) (threeyear statute applies to § 1983 claims arising in New Hampshire).
“Section 1983 claims generally accrue when the plaintiff knows,
or has reason to know of the injury on which the action is
based, and a plaintiff is deemed to know or have reason to know
at the time of the act itself and not at the point that the
harmful consequences are felt.”

Gorelik, 605 F.3d at 122

(internal quotation marks omitted).

Applying that standard, the

court finds that Kelly’s claims accrued in 2009, and are now
time-barred.
Furthermore, Kelly has failed to state plausible claims for
relief on the new claims.

The facts alleged do not show that

the officers that confiscated and/or failed to return the items
were subjectively aware of any substantial risk of serious harm
to Kelly posed by their conduct.

As to the retaliation claim

based on allegations of cell searches, verbal harassment, the
threatened removal of his mattress, the temporary confiscation

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of prescribed bedding and stockings, and other acts, Kelly has
failed to plead facts showing that those acts would deter an
inmate of ordinary firmness from filing grievances.

See Starr

v. Dube, 334 F. App’x 341, 342 (1st Cir. 2009); Starr v. Moore,
849 F. Supp. 2d 205, 209 (D.N.H. 2012).

Finally, the

allegations regarding Topham’s and Roy’s failure to train and or
supervise their subordinate officers, when stripped of legal
conclusions, fail to state plausible claims for relief.
Accordingly, the motion to amend the complaint is denied, in
part, as futile, to the extent Kelly seeks to assert new
Fourteenth Amendment claims and First Amendment retaliation
claims relating to the confiscation of stockings and bedding,
shake-downs of his cell, harassment, training, supervision of
subordinate officers, and other acts that affected him in 2009.
II.

Motion for Stay and Motion to Extend Deadlines
Defendants have moved to stay all proceedings in this case

until the court rules on two motions for summary judgment that
they have filed in this action; plaintiff has not responded to
that motion.

Plaintiff has moved for additional time to object

to defendants’ March 2014 motion for summary judgment and to
disclose experts and expert reports, and defendants have
objected to that motion.

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Plaintiff asserts that his status as an inmate in a federal
prison in California and a month-long lock-down order imposed at
that facility in March 2014 rendered him unable to file a timely
objection to the summary judgment motion and to disclose experts
in this case.

In light of the difficulties rendered by

plaintiff’s pro se status and out-of-state incarceration, the
court grants plaintiff ninety days from the date of this order
to disclose experts and to object to the March 2014 motion for
summary judgment.

The court continues other deadlines in this

case, including the deadlines set in the December 2013 amended
trial notice, as set forth in the conclusion of this order.
This court has discretion to stay certain proceedings while
a dispositive motion is pending, see Aponte-Torres v. Univ. of
P.R., 445 F.3d 50, 59 (1st Cir. 2006) (stay of discovery).
Because a ruling on the December 2013 motion for summary
judgment could obviate the need for discovery, and in light of
this court’s order on plaintiff’s motion to amend, the court
continues certain deadlines in this case, including the
discovery deadline.

The revisions to the case schedule set

forth in the conclusion of this order provide a measure of the
relief sought in the stay motion, without unnecessarily
preventing the parties from pursuing discovery or litigating
issues as they see fit, while the court completes its

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consideration of the summary judgment motions.

The motion for a

stay (doc. no. 32) is therefore denied, as the court issues, in
the conclusion of this order, a revised discovery plan and
pretrial schedule.
III. Motion for Appointment of Counsel
Plaintiff has moved for the appointment of counsel citing
his indigency and incarceration in California.

He asserts that

he is unable to depose witnesses and interview prisoners while
he is incarcerated, and he further asserts that a lawyer would
help him engage and communicate with an expert witness and
opposing counsel.
This court has discretion to deny an indigent plaintiff’s
request for appointed counsel, unless he shows that his case
presents exceptional circumstances, such that fundamental
unfairness, impinging upon the right to due process, is likely
to result if counsel is not appointed.
949 F.2d 15, 23 (1st Cir. 1991).

See DesRosiers v. Moran,

A ruling on the fully-briefed

December 2013 motion for summary judgment (doc. no. 24) could
obviate the need for further discovery or litigation in this
case.

The motion for appointment of counsel (doc. no. 34) is

therefore denied without prejudice to refiling after the court
rules on the pending summary judgment motion.

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Conclusion
For the reasons explained in this order, the court directs
as follows:
1.

Plaintiff’s motion to amend the complaint (doc. no.

29) is GRANTED in part, to the extent that the court directs
service of the amended complaint upon former SCHC Superintendent
Warren Dowaliby and ten John and Jane Doe SCHC medical staff
employees.

The clerk’s office is directed to redocket Document

No. 29-1 as the “Amended Complaint,” and Documents Nos. 29-2 to
29-5 as exhibits to the amended complaint.

The motion to amend

is otherwise DENIED.
2.

The clerk’s office shall contact Attorney Belobrow to

request that he notify the court in writing, within ten days, if
he is authorized to accept service on Dowaliby’s behalf, and on
behalf of the ten John and Jane Doe defendants.

The clerk’s

office shall also request that Attorney Belobrow, if unable to
accept service for Dowaliby, make inquiries as to the SCHC’s
last known address for Dowaliby, and, within ten days, submit
that address to the court under seal, at Level I, if service
upon Dowaliby by the U.S. Marshals Service is necessary.
3.

If Dowaliby and/or the John and Jane Doe defendants

must be served, the clerk’s office shall prepare and issue
summonses for Dowaliby, using the address provided under seal,

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and for “John and Jane Does 1-10,” using the SCHC’s address, and
forward to the United States Marshal for the District of New
Hampshire (“U.S. Marshal’s office”): the summonses; the Amended
Complaint with exhibits (doc. nos. 29-1 to 29-5); the June 3,
2013, report and recommendation (doc. no. 9); the order
approving that report and recommendation (doc. no. 19); and this
order.

Upon receipt of those documents, the U.S. Marshal’s

office shall effect service, see Fed. R. Civ. P. 4(c)(3) and
4(e).
4.

Dowaliby and the John and Jane Doe defendants are

directed to respond to the amended complaint within 21 days of
service, with the date of service deemed to occur upon the date
of Attorney Belobrow’s filing of a notice of acceptance of
service, or upon completion of service by the U.S. Marshal’s
office, pursuant to Fed. R. Civ. P. 4(e).

Defendants Tracy

Warren, Rebecca Eischen, and Dawn Dow shall file their response
to the amended complaint within 21 days of the date of this
order.
5.

The court DENIES without prejudice plaintiff’s motion

for appointment of counsel (doc. no. 34).
6.

The court DENIES defendants’ motion for a stay (doc.

no. 32).

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7.

The court GRANTS plaintiff’s motion (doc. no. 35) to

extend deadlines for disclosing experts and for objecting to the
March 2014 summary judgment motion.

The deadlines in the

December 29, 2013, amended trial notice are continued for ninety
days.

The summary judgment motion (doc. no. 31) briefing

schedule and the November 2013 discovery plan are revised as
follows:
Event
March 2014
Summary
Judgment Motion
(Doc. No. 31)
Experts and
Expert Written
Reports
Challenges to
Expert
Testimony

Revised Deadline
Plaintiff’s
Objection

August 1, 2014

Plaintiff

August 1, 2014

Defendants

September 1, 2014

Defendants

September 1, 2014

Plaintiff

October 1, 2014

Completion of
Discovery
Summary
Judgment
Motions

November 1, 2014
November 15, 2014

SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
May 7, 2014
cc: Howard D. Kelly, pro se
Corey M. Belobrow, Esq.
LBM:nmd

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