Ayer v. Heath et al

Filing 56

ORDER Directing Clerk to Make Service 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
Presently before the court are:


Plaintiff Daniel Ayer’s motions (doc. nos. 29 and 39),
seeking reconsideration of the August 18, 2014, Order
(doc. no. 26);



Ayer’s motions seeking to amend the complaint (doc. nos.
30 and 36), along with complaint addenda that he filed
unaccompanied by any motion (doc. nos. 17, 52, and 53);



Ayer’s motions and related filings seeking preliminary
injunctive relief (doc. nos. 21, 27, and 32); and



Ayer’s motions seeking a default judgment (doc. nos. 41
and 42).

All of these filings, and related objections and memoranda,
have been referred to the undersigned magistrate judge for a
ruling or recommended disposition, as appropriate.

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In a Report

Defendants originally named in this action are New
Hampshire State Prison (“NHSP”) Warden Richard Gerry, and NHSP
employees Robert Heath and Rick Morrill. In an order issued
August 18, 2014 (doc. no. 26), the district judge dropped
Morrill from this action.

and Recommendation issued simultaneously with this Order
(“R&R”), this court has recommended that the district judge
deny all of the above-listed motions and addenda in their
entirety, except Document Nos. 52 and 53, proposed addenda to
Ayer’s complaint, in which Ayer has stated a claim upon which
relief might be granted asserting that he has been harmed by
exposure to black mold at the prison, in violation of the
Eighth Amendment.

Accordingly, in the R&R, the court

recommended dismissal of those addenda (doc. nos. 52 and 53),
except to the extent they concern the black mold claim.
Service
As stated above, the court finds that Ayer has asserted a
claim upon which relief might be granted concerning his
exposure to black mold.

Ayer has asserted facts sufficient to

assert that claim against defendants Jon Hanson, Robert Heath,
Warden Richard Gerry, Major John Fouts, Commissioner William
Wrenn, and Christopher Kench.

Accordingly, the court now

directs service upon Hanson, Fouts, Wrenn, and Kench, and
directs Gerry and Heath, who have already been served in this
action, to answer the black mold claim.

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The Clerk’s office is directed to serve electronic copies
of this Order, the Report and Recommendation issued
simultaneously with this Order, and the docket entries
numbered: 1-3, 10-12, 15-18, 21, 26, 27, 29-32, 36, 38, 39, 4143, 45, and 48-53, 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 any defendant does not authorize the AG to receive
service on their behalf, or the AG declines to represent any
defendant, 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.

In that event, the clerk's office is instructed to

complete and issue a summons for each defendant, using the last
known address provided, and forward the summonses, along with
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copies of the documents listed above, 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).
Heath’s and Gerry’s answer[s], or Rule 12 motion[s],
relating to the black mold claim, and to any new factual
allegations asserted in the supplemental pleadings (doc. nos.
17, 30, 36, 52, and 53), shall be filed within thirty days of
the date of this Order.
Warning to Ayer Regarding LR 15.1
Ayer’s filings in this matter have been frequent,
repetitive, and piecemeal.

Further, rather than properly

seeking leave to file an amended complaint, pursuant to LR
15.1, Ayer has instead filed addenda and motions to amend his
previously filed pleadings and documents, has made repetitive
assertions and arguments throughout his pleadings, and has
scattered his assertions and arguments within his filings such
that the titles of his filings and their contents do not always
squarely align.
Mindful of Ayer’s pro se status, and the importance of Ayer
being able to file pleadings in a manner that will assure that
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his assertions and arguments are understood and fully
considered, as well as the fact that “pro se litigants must
comply with procedural rules and substantive law,” see Cabacoff
v. Wells Fargo Bank, N.A., No. 12-cv-56-PB, 2012 WL 5392545, at
*2 (D.N.H. Nov. 5, 2012) (internal quotation marks and citation
omitted), the court directs Ayer’s attention to this court’s
local rules concerning motion practice before the court, as
well as Federal Rules of Civil Procedure related thereto.

In

particular, Ayer is directed to LR 15.1, which requires parties
seeking to amend a filing to, among other things, attach the
proposed amended filing to the motion to amend; identify the
new facts, claims, or parties; and explain why the new claims,
facts, or parties were not included in the original filing.
Judicial Conduct Complaint
Ayer has filed a judicial conduct complaint against this
magistrate judge, alleging that I have exhibited bias against
him in rulings I have made, that he believes to be incorrect,
in this case and/or in Ayer’s pending habeas action, Ayer v.
Gerry, 07-cv-304-SM.

A judge must recuse herself, pursuant to

28 U.S.C. § 455 “in any proceeding in which [her] impartiality
might be reasonably questioned.”
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A judge should ordinarily

continue to preside over any case assigned to her in which
there is no objective basis for recusal.

Further, courts must

be careful to resist strategic moves by a disgruntled party to
remove a judge whose rulings the party dislikes.

Thus, the

fact that a litigant has filed a complaint against a judge
arising from the judge’s work in the case does not
automatically require the judge to recuse herself from that
case.

Baldi v. Broderick, No. 04-cv-466-01-PB, 2006 WL

3731302, *1 (D.N.H. Dec. 18, 2006).
not had, any bias against Ayer.

I do not have, and have

Here, neither the fact nor the

substance of Ayer’s complaint presents cause for me to recuse
myself in this matter.
Conclusion
The court now directs as follows:
1.

The action will be served, as directed in this

Order, on defendants Jon Hanson, Major John Fouts,
Commissioner William Wrenn, and Christopher Kench.
2.

Defendants Heath and Gerry are directed to file

their answer[s] or Rule 12 motion[s], as directed in this
Order, within thirty days of the date of this answer.

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3.

Should Ayer, in the future, seek to amend his

complaint or any other document he has filed, such a filing
must be made in accordance with LR 15.1, as well as any
relevant Local Rules of this court and the Federal Rules of
Civil Procedure.
SO ORDERED.

______________________________
Andrea K. Johnstone
United States Magistrate Judge
December 2, 2014
cc:

Daniel Ayer, pro se
Megan A. Yaple, Esq.
Nancy J. Smith, Esq.

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