Hart v. US Department of the Treasury et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Kenneth Hannibal Hart
v. 	Case No. 14-cv-421-LM
United States Department
of the Treasury et al.1
REPORT AND RECOMMENDATION
Before the court for preliminary review under LR 4.3(d)(1)
are complaint addenda (doc. nos. 18, 22, and 23),2 filed by
Kenneth Hannibal Hart, an inmate at the New Hampshire State
Prison (“NHSP”). 	The standard employed by the court in
conducting the preliminary review is set forth in the November
19, 2014, Report and Recommendation (doc. no. 8).
1The sole defendant remaining in this lawsuit is an unnamed
agency or organization of the state or federal government,
identified as “John Doe #3,” that plaintiff asserts is
responsible for making errors in his criminal record. 	This
court previously dismissed without prejudice Hart’s Federal Tort
Claims Act claims relating to government checks issued by the
U.S. Department of the Treasury and the Office of the
Comptroller of the Currency, and dropped those agencies, the
Treasury Secretary, and the Comptroller of the Currency as
defendants.
2Document No. 18, entitled “Amendment to the Original
Complaint,” was originally docketed as a “motion to amend.” 	In
the Order issued on this date, the court has withdrawn the May
28, 2015, Report and Recommendation (doc. no. 21), concerning
that motion, and has granted the motion to amend (doc. no. 18),
making the claims in Document No. 18, including the exhibits
attached thereto, subject to preliminary review under LR
4.3(d)(1).
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Background
This court construed the original complaint in this action
to assert the following claims:
• 	a Federal Tort Claims Act (“FTCA”) claim challenging the
Treasury Department’s alleged negligent mishandling of
government benefit checks made out to Hart; and
• 	a claim against unknown government agents whom Hart
accused of publishing false information about convictions
in Hart’s criminal record, seeking relief for defamation
under state tort law, under 42 U.S.C. § 1983, and/or under
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
See Jan. 26, 2015, Order (doc. no. 14), slip. op. at 3-4. 	This
court dismissed the FTCA claim without prejudice. 	See Feb. 18,
2015, Order (doc. no. 15). 	The court also granted plaintiff an
opportunity to amend the complaint to state claims relating to
allegations that federal or state agents had falsified Hart’s
criminal record. 	See Jan. 26, 2015, Order (doc. no. 14); see
also Mar. 18, 2015, Order (extending deadline for amending
complaint to May 31, 2015). 	Hart has not filed any complaint
amendment relating to the falsification of his criminal record.
Hart’s filings in April 2015 consisted of: (1) the
complaint addendum (doc. no. 19) discussed in a separate Report
and Recommendation issued on this date, relating to Hart’s
letters to the U.S. Secretary of the Treasury and the
Comptroller, and (2) the complaint addendum originally docketed
by the clerk’s office as a motion to amend (doc. no. 18), with
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exhibits. 	Document No. 18, including those exhibits, asserts
new civil rights claims under 42 U.S.C. § 1983 against a number
of NHSP officers, agents, and medical/dental care providers, and
an unnamed Merrimack County Sheriff’s Department deputy, none of
whom were previously identified as defendants in this action.
In June 2015, Hart filed two additional complaint addenda (doc.
nos. 22 and 23), asserting new § 1983 claims.
In particular, in Document No. 18, Hart asserts the
following claims for relief under 42 U.S.C. § 1983, numbered 1-
10 below:
1. 	Secure Psychiatric Unit (“SPU”) officers Ryan
Goulette, Page Kimbal, and Eric Barbaro seized Hart’s
stationery supplies and legal work on November 29, 2012,
preventing Hart from filing papers in 2012, with respect to
a guardianship proceeding (In re Hart, No. 317-2002-GI-
00420 (N.H. Cir. Ct., 6th Cir., Probate Div.-Concord));
post-conviction proceedings in the New Hampshire Supreme
Court; a pending civil rights case (Hart v. U.S. Att’y
Gen’l, No. 12-cv-362-JL (D.N.H.)); and a planned lawsuit in
federal court to challenge an April 2012 tasering incident
involving the alleged use of excessive force, thereby
(a) violating Hart’s right to access the courts, and
(b) retaliating against Hart, for Hart’s exercise of
his First Amendment rights.
2. 	SPU Capt. Cascio and Department of Corrections officer
Christopher Kench did not cause Hart’s legal work to be
returned in 2012, thereby
(a) violating Hart’s right to access the courts, and
(b) retaliating against Hart, for Hart’s exercise of
his First Amendment rights.
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3. 	SPU officers Robert Murray and Cascio read Hart’s
confidential legal papers and prevented Hart from making
copies of a document to file in probate court on November
29, 2012, thereby
(a) violating Hart’s right to access the courts, and
(b) retaliating against Hart, for Hart’s exercise of
his First Amendment rights; and
(c) violating Hart’s right to privacy in his legal
work.
4. 	NHSP SPU Nurse Diane prevented Hart from filing papers
in his guardianship proceeding in 2012 by threatening to
put Hart in restraints if he continued to demand access to
stationery and/or his legal paperwork, thereby
(a) violating Hart’s right to access the courts, and
(b) retaliating against Hart, for Hart’s exercise of
his First Amendment rights.
5. 	An unnamed Merrimack County Deputy Sheriff and SPU
officers Barbaro, Kimbal, and Goulette prevented Hart from
appearing at a probate court hearing on November 29, 2012,
and from offering the probate court a timely, accurate
explanation for his failure to appear, thereby
(a) violating Hart’s right to access the courts, and
(b) retaliating against Hart, for Hart’s exercise of
his First Amendment rights.
6. 	NHSP Librarian Becky Harding in November/December 2012
refused to give Hart sufficient stationery and denied Hart
access to adequate legal resources; NHSP Librarian Daniel
Tanguay read Hart’s legal paperwork and denied Hart access
to adequate legal resources; and State Law Librarian John
Perkins denied Hart access to adequate legal resources,
thereby
(a) violating Hart’s right to access the courts, and
(b) retaliating against Hart, for Hart’s exercise of
his First Amendment rights.
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7. 	SPU officers Barbaro and Dube shot Hart with a Taser
to force Hart to take medication at 8 p.m. on April 15,
2012, after Hart had agreed to take the same medication at
11 p.m., thereby subjecting Hart to the use of excessive
force in bad faith, in violation of Hart’s Eighth Amendment
rights.
8. 	DOC Hearing Officer Hickman denied Hart a fair
disciplinary hearing relating to the April 2012 tasering
incident, in violation of Hart’s right to due process, and
imposed the following sanctions on Hart, 30 days loss of
canteen, a loss of access to condiments, the cost of a
replacement Taser cartridge ($27), 30 days loss of
recreation time, and 30 days extra duty.
9. 	Defendants induced mental paralysis in Hart, in
violation of his Eighth Amendment rights.
10. 	Unnamed NHSP dentists and dental assistants caused
Hart unnecessary pain and suffering, with deliberate
indifference to a substantial risk of serious harm, by
drilling and damaging healthy teeth and refusing to fix
Hart’s partial.
In Document Nos. 22 and 23, Hart adds the following claims
for relief under 42 U.S.C. § 1983, numbered as Claims 11 and 12
by this court:
11. 	SPU Capt. Cascio and DOC officer Kench are responsible
for the seizure of Hart’s files on December 8, 2011, and
for failing to return those files, in time for Hart to
pursue post-conviction proceedings in state court, thereby
(a) violating Hart’s right to access the courts, and
(b) violating Hart’s Eighth Amendment rights to avoid
cruel and unusual punishment.
12. 	NHSP Food Service Department Chef Brendan Luba and
unnamed John/Jane Doe NHSP employees fired Hart from a
kitchen job on April 20, 2015, in retaliation for Hart’s
filing of this lawsuit, grievances, and inmate request
slips.
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Discussion
I. 	Claim Relating to Errors in Criminal Records
This court’s January 26, 2015, Order granted Hart an
opportunity to plead additional facts to state a defamation
claim relating to false statements in his criminal record. 	Hart
has not filed any complaint amendment relating to those
allegations. 	Accordingly, for reasons stated in the January 26,
2015, Order (doc. no. 14), and herein, the district judge should
dismiss Hart’s claims relating to errors in his criminal
records, for failure to state a claim.
II. 	New Claims Asserted in Document Nos. 18, 22, and 23
“A party asserting a claim . . . may join, as independent
or alternative claims, as many claims as it has against an
opposing party.” 	Fed. R. Civ. P. 18(a). 	“Despite the broad
language of Rule 18(a),” however,
plaintiff may join multiple defendants in a single action
only if plaintiff asserts at least one claim to relief
against each of them that arises out of the same
transaction or occurrence and presents questions of law or
fact common to all.
7 Charles Alan Wright et al., Fed. Prac. & Proc. Civ. § 1655 (3d
ed. 2001). 	“Unrelated claims against different defendants
belong in different suits,” in part “to ensure that prisoners
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pay the required filing fees” and that prisoners do not avoid
exposure to the “three strikes” provision of 28 U.S.C.
§ 1915(g). 	George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007);
see also Guiden v. Werholtz, No. 11-3031-SAC, 2011 WL 1807443,
2011 U.S. Dist. LEXIS 50890, at *65 (D. Kan. May 11, 2011)
(“While joinder is encouraged for purposes of judicial economy,
the ‘Federal Rules do not contemplate joinder of different
actions against different parties which present entirely
different factual and legal issues.’” (citation omitted)).
None of the individuals named in Claims 1 to 12 are named
as defendants in the original complaint, and none of those
claims arises out of the same transaction or occurrence as the
claims asserted in the original complaint. 	To prevent
plaintiff, a frequent litigant in this court, from using this
lawsuit as a repository for new claims in a manner that could
evade restrictions on prisoner litigation, plaintiff should not
be permitted to inject unrelated claims against new parties into
this action. 	Claims 1-12 identified herein do not have a
sufficient relationship to any claim previously alleged. 	For
that reason, the district judge should not allow those claims to
proceed in this lawsuit.
Without commenting on the merits of Claims 1 to 12 asserted
by Hart in Document Nos. 18, 22, and 23, the district judge’s
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order on this Report and Recommendation should direct the clerk
to redocket Document No. 18 (including the exhibits) as a new
complaint in a new case, and should direct the clerk to redocket
Document Nos. 22 and 23 as addenda to that new complaint in that
new case. 	To avoid unnecessarily causing the statute of
limitations to become an issue, the docket in the new case
should reflect that the new complaint was filed on April 14,
2015, and that the complaint addenda were filed on June 15,
2015, which appear to be the dates Hart placed each of those
documents in the prison mail system. 	To litigate Claims 1-12 in
that case, Hart must either pay the filing fee for that new
civil case, or he must complete an application for in forma
pauperis status in that case.
Conclusion
For the foregoing reasons, the magistrate judge recommends
as follows:
1. 	The district judge should dismiss all claims from
this lawsuit arising from allegations that there are errors
in Hart’s criminal records.
2. 	The district judge should dismiss Claims 1 to 12,
identified herein, from this case without prejudice to
refiling in a new case, and should direct the clerk to
close this case.
3. 	The district judge should direct the clerk’s
office to open a new prisoner civil rights action treating
Document No. 18 as the complaint in that action, with a
filing date of April 14, 2015, and treating Document Nos.
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22 and 23 as complaint addenda in that action, with filing
dates of June 15, 2015.
4. 	The district judge should direct the clerk’s
office to issue an order in that new case, requiring Hart
to pay the filing fee in that case, or to file a properly
supported motion to proceed in forma pauperis in that new
case.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	Failure to file objections within the
specified time waives the right to appeal the district court’s
order. 	See United States v. De Jesús-Viera, 655 F.3d 52, 57
(1st Cir. 2011); Sch. Union No. 37 v. United Nat’l Ins. Co., 617
F.3d 554, 564 (1st Cir. 2010).
/s/ Andrea K. Johnstone
Andrea K. Johnstone
United States Magistrate Judge
November 20, 2015
cc: 	Kenneth Hannibal Hart, pro se
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