Rowell v. Vissa et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Mesfen A. Rowell
v. 	Case No. 19-cv-419-JL
Sgt. FNU Vissa, Nurse FNU Bancroft,
Hillsborough County Department of Corrections
REPORT AND RECOMMENDATION
Before the court is plaintiff Mesfen A. Rowell’s motion to
amend the complaint and join new defendants (Doc. No. 19).1 	To
the extent that the motion (Doc. No. 19) is intended to add new
claims for relief and to join new defendants to this lawsuit,
the matter is before the court for preliminary review under LR
4.3(d)(1) and 28 U.S.C. § 1915A(a).
Motion to Amend/Join Standard
In general, under Fed. R. Civ. P. 15(a), leave to amend a
complaint is to be “freely given.” 	Id. 	The court may deny a
motion seeking to add new claims to an action on the ground that
1In an Order issued this date, the court has directed
defendants, Sgt. Vissa, Nurse Bancroft, and the Hillsborough
County Department of Corrections (“HCDOC”), to file an amended
answer addressing the new allegations in Document No. 19, no
later than fourteen days after the date that the district judge
issues an Order on this Report and Recommendation.
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the proposed amendment would be futile. 	See Todisco v. Verizon
Commc’ns, Inc., 497 F.3d 95, 98 (1st Cir. 2007). 	To assess
whether the proposed amendment is futile, this court applies the
standard for preliminary review set forth in the April 20, 2020
Report and Recommendation (“April 20 R&R”) (Doc. No. 17) to the
assertions in Document No. 19.
Discussion
I. 	Civil Rights Conspiracy
Construed liberally, Document No. 19 asserts new claims
that FTO Caitlin Rutzke, an unnamed Shift Supervisor, and County
Commissioner Toni Pappas conspired with Sgt. Vissa and Nurse
Bancroft to violate Mr. Rowell’s Fourteenth Amendment due
process rights. 	Mr. Rowell’s complaint (Doc. No. 1) stated
claims based on an alleged assault by Sgt. Vissa and alleged
deliberate indifference of Nurse Bancroft on July 15, 2018, the
date Mr. Rowell originally alleged he arrived at the HCDOC. 	The
complaint also asserted a civil rights conspiracy claim based on
Mr. Rowell’s allegations that officers who witnessed the July
15, 2018 events, as well as officers to whom he grieved those
events, did not file incident reports or take corrective action.
In Document No. 19, Mr. Rowell clarifies that he arrived at
the HCDOC after midnight, and that the assault and his contacts
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with Nurse Bancroft occurred on July 16, 2018. 	In addition, in
Document No. 19, Mr. Rowell asserts new claims of a civil rights
conspiracy, alleging that FTO Rutzke prepared a report on July
16, 2018 that includes lies about what she knew about Mr.
Rowell’s injuries, and the extent of Nurse Bancroft’s assessment
of his condition on July 16, 2018. 	Mr. Rowell further alleges
that both Sgt. Vissa (his alleged assailant) and the Shift
Supervisor signed off on the report filed by FTO Rutzke.
Additionally, Mr. Rowell alleges he grieved issues up the chain
of command and complained in three detailed letters addressed to
County Commissioner Pappas, but his pleas for help were ignored.
A civil rights conspiracy includes as an element that there
was an agreement to violate the plaintiff’s civil rights. 	Mr.
Rowell’s new allegations, like those in the original complaint,
concern the alleged failure of HCDOC officers to file accurate
and timely reports regarding the incidents he asserts they
witnessed and the alleged failure of officers and supervisors to
investigate what happened and to take proper action. 	Without
impermissible speculation about the existence of a common plan
or conspiratorial agreement, the allegations in the original
complaint as well as those in Document No. 19, fail to show that
there was any conspiracy among the officers and supervisors to
violate Mr. Rowell’s rights. 	See, e.g., Aubin v. Fudala, 782
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F.2d 280, 286 (1st Cir. 1983) (alleged evidence of “a cover-up”
involving conflicting statements by officer who shot plaintiff,
the failure of supervisors to question that officer at the
scene, uncorroborated testimony of another officer accusing
plaintiff of drinking, and the subsequent release by local
officials of incorrect and prejudicial information did not raise
jury question regarding existence of civil rights conspiracy),
overruled on other grounds by Crowe v. Bolduc, 365 F.3d 86, 89
(1st Cir. 2004); see also Salameh v. Duval, No. 12-10165-RGS,
2014 U.S. Dist. LEXIS 21956, at *22, 2014 WL 691610, at *5 (D.
Mass. Feb. 21, 2014). 	Accordingly, the district judge should
deny the motion to amend the complaint to add a civil rights
conspiracy claim to this action.
II. 	Commissioner Pappas and Hillsborough County
Mr. Rowell seeks leave to join Hillsborough County
Commissioner Toni Pappas and the County itself as defendants.
In that this court previously directed the HCDOC to file an
answer to Mr. Rowell’s state law tort claims, liberally
construed, Document No. 19 seeks leave to join Commissioner
Pappas and the County as defendants to his civil rights claims.
There are no allegations in Document No. 19 regarding any
County policy or practice that may have led to the alleged
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violations of Mr. Rowell’s rights. 	Rather, in Document No. 19,
Mr. Rowell asserts he sent complaints up the chain of command at
the HCDOC and sent three detailed letters to Commissioner Pappas
but received no help in response. 	Insofar as the claims that
have been served concern conduct at the time of his arrival at
the HCDOC, allegations of those after-the-fact grievances and
letters do not state a claim of supervisory liability under
§ 1983. 	See Blanchard v. Swaine, No. 08-40073-FDS, 2010 U.S.
Dist. LEXIS 125397, at *52, 2010 WL 4922699, at *17 (D. Mass.
Nov. 29, 2010) (to establish supervisory liability, “[t]he
causation requirement can only be met by evidence that [the
supervisor] acted to manifest deliberate indifference to
potential rights violations on the part of his subordinates
before the alleged rights violation occurred” (emphasis in
original)); see also Salameh, 2014 U.S. Dist. LEXIS 21956, at
*23, 2014 WL 691610, at *6 (“claim that defendants were
indifferent to [inmate’s] ‘grievances’ and failed to properly
investigate his recriminations against specific DOC employees is
a non-starter because an inmate is not entitled to a particular
grievance procedure or result”).
Nothing pleaded in Document No. 19 gives rise to any
actionable claim of a civil rights conspiracy or supervisory or
municipal liability under § 1983, with respect to the claims
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that have been allowed to proceed, and there are no viable new
claims for relief pleaded in Document No. 19 which could warrant
joining new defendants. 	Accordingly, the motion to amend and
join new defendants (Doc. No. 19) should be denied.
Conclusion
For the foregoing reasons the district judge should deny
the motion to amend the complaint and add new defendants (Doc.
No. 19). 	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). 	The fourteen-day period may be
extended upon motion. 	Failure to file objections within the
specified time waives the right to appeal the district court’s
order. 	See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168
(1st Cir. 2016).
___________ 	______________
Andrea K. Johnstone
United States Magistrate Judge
May 26, 2020
cc: 	Mesfen A. Rowell, pro se
Matthew Vernon Burrows, Esq.
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