Ayer v. Heath et al

Filing 16

ORDER Directing Clerk to Make Service. Further, the Motion to Addend Complaint(doc. no. 2) is GRANTED. The Clerks office is directed to docket the proposed addendum to the complaint (doc. no. 12-1) as a complaint addendum. The Motion to Appoint Counsel(doc. no. 4) is DENIED, without prejudice to refiling should circumstances arise that provide a basis for doing so. The Motion to Engage in Discovery (doc.no. 14) is motion is DENIED as premature, without prejudice as outlined. So Ordered by Magistrate Judge Andrea K. Johnstone.(cmp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Daniel Ayer
v.

Civil No. 14-cv-261-JL

Robert Heath et al. 1

O R D E R

Daniel Ayer, an inmate at the New Hampshire State Prison
(“NHSP”), has filed this action asserting, pursuant to 42 U.S.C.
§ 1983, that Defendants violated his rights under federal and
state law.

The complaint 2 is before this Magistrate Judge for

preliminary review, pursuant to 28 U.S.C. § 1915A(a) and LR
4.3(d)(1).

Also before the court for consideration are the

following motions, filed by Ayer: a motion (doc. no. 2) for
leave to file an addendum to his complaint, and an addendum to
that motion (doc. no. 12), which includes a complaint addendum
1

The Defendants named in this action are New Hampshire State
Prison (“NHSP”) Warden Richard Gerry, and NHSP employees Robert
Heath and Rick Morrill. The Defendants are each sued in their
individual and official capacities.
2

The complaint in this matter is construed to consist of:
the initial complaint (doc. no. 1); a complaint addendum (doc.
no. 12-1), filed separately; and the factual assertions
contained in Plaintiff’s motions for preliminary injunction
(doc. nos. 3, 10 and 11).

(doc. no. 12-1); a motion (doc. no. 4) to appoint counsel; and a
motion (doc. no. 14) to engage in discovery. 3
MOTION TO ADDEND COMPLAINT (Doc. Nos. 2 and 12)
The Court construes the motion to addend the complaint
(doc. no. 2) and the addendum to that motion (doc. no. 12) as a
motion to amend the original complaint (doc. no. 1) to include
the additional claims set forth in the complaint addendum (doc.
no. 12-1).

The motion (doc. no. 2) is GRANTED.

The Clerk’s

office is directed to docket the proposed addendum to the
complaint (doc. no. 12-1) as a complaint addendum.
MOTION TO APPOINT COUNSEL (Doc. No. 4)
In support of his motion for court-appointed counsel,
plaintiff cites his indigency, his lack of a “solid
understanding” of the law; his inability to adequately litigate
this action; the complexity of the case; and the restraints on
self-representation imposed by his incarceration.

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,
3

Ayer has filed a “Proposed Settlement Agreement” (doc. no.
13). No court action need be taken on that filing at this time.
2

impinging upon the right to due process, is likely to result if
counsel is not appointed.
23 (1st Cir. 1991).

See DesRosiers v. Moran, 949 F.2d 15,

Here, Plaintiff has demonstrated an ability

to present his claims clearly and cogently, and has not asserted
any facts demonstrating the existence of exceptional
circumstances to warrant the appointment of counsel.

The motion

(doc. no. 4) is therefore DENIED, without prejudice to refiling
should circumstances arise that provide a basis for doing so.
MOTION TO ENGAGE IN DISCOVERY (Doc. No. 14)
Ayer has filed a motion seeking discovery materials.
Leaving aside any substantive or procedural issue presented by
the filing, the motion is denied as premature, without prejudice
to Ayer’s seeking discovery in accordance with the Federal Rules
of Civil Procedure and this courts Local Rules after defendants
have appeared and answered the complaint.
PRELIMINARY REVIEW – SERVICE ORDER
In a Report and Recommendation issued this date (“R&R”),
the Court finds that Ayer has stated individual capacity First
Amendment retaliation claims upon which relief might be granted

3

against Defendants Robert Heath and Richard Gerry. 4

Accordingly,

the Court directs service of the complaint on defendants Heath
and Gerry.

The Clerk's office is directed to serve electronic

copies of this Order, the R&R, and the complaint (doc. nos. 1,
3, 10, 11, and 12-1) on the New Hampshire Office of the Attorney
General (“AG”), as provided in the Agreement on Acceptance of
Service.
Within thirty days from receipt of these materials, the AG
must submit an Acceptance of Service notice to the court
specifying whether all of the Defendants have authorized the AG
to receive service on their behalf.

When the AG files the

Acceptance of Service, service will be deemed made on the last
day of the thirty-day period for all Defendants who accept AG
representation.
If either Defendant does not authorize the AG to receive
service on their behalf, or the AG declines to represent either
or both of the Defendants, the AG shall, within thirty days from
receipt of the aforementioned materials, provide to the court
the last known address of the Defendants who will not be
represented by the AG.
4

In that event, the Clerk's office is

In the R&R, the court recommends dismissal of the remaining
Defendant and claims in the complaint.
4

instructed to complete and issue a summons for each Defendant,
using the last known address provided, and forward the
summonses, along with copies of this order and the complaint
(doc. nos. 1, 3, and 10 - 12), to the United States Marshal for
the District of New Hampshire, to complete service on those
defendants in accordance with this Order and Fed. R. Civ. P.
4(c)(3) and 4(e).
Defendants are instructed to answer or otherwise plead
within twenty-one days of service.
12(a)(1)(A).

See Fed. R. Civ. P.

Plaintiff 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 the Defendants or their attorney(s), pursuant to
Fed. R. Civ. P. 5(b).
SO ORDERED.

__________________________
Andrea Johnstone
United States Magistrate Judge
July 28, 2014
cc:

Daniel Ayer, pro se
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