Waite v. Hoyt et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Richard A. Waite
v. Civil No. 22-cv-071-SE-AJ
Chaplain D. Hoyt et al.
REPORT AND RECOMMENDATION
New Hampshire Department of Corrections (“DOC”) prisoner Richard A. Waite,
presently incarcerated at the New Hampshire State Prison for Men (“NHSP”), filed this action
asserting violations of his religious rights, diet, and nutritional needs. Before the court is
plaintiff’s motion for emergency injunctive relief (Doc. No. 71), which seeks leave to add new
claims of First Amendment retaliation, a strip search violating his federal rights, and violations
of Waite’s right of access to the courts relating to legal work in his cell. Waite names three of
the existing parties – (former) DOC Commissioner Helen Hanks, Northern New Hampshire
Correctional Facility (“NCF”) Warden Corey Riendeau, and NHSP Warden Michelle Edmark –
as defendants to those claims, along with a group of their subordinate corrections officers who
are not parties to this case. The motion (Doc. No. 71) seeks preliminary injunctive relief on
Waite’s proposed new retaliation and access to the courts claims. Defendants object (Doc. No.
77). The district judge referred Waite’s motion for a Report and Recommendation. See Sept. 3,
2025 Order.
Background
Plaintiff filed this case in 2022, challenging the conditions of his confinement at NCF.
The claims that survived this court’s preliminary review assert violations of the Religious Land
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Use and Institutionalized Persons Act (“RLUIPA”), the First Amendment’s Free Exercise and
Establishment Clauses, and the Eighth Amendment regarding Waite’s efforts to obtain DOC
recognition of his religious faith of Witchcraft, his efforts to obtain a religious diet, his efforts to
obtain a ceremonial oil, and the alleged impact on his health of his NCF meals. Twelve
members of the DOC Religious Review Committee, including the DOC Commissioner, the NCF
Warden, the DOC chaplains, and the NHSP Warden, are the defendants to those claims.
Waite moved in 2024 to add new claims and new defendants. Doc. No. 10. The court
denied that (first) motion to amend on the basis of futility and on the ground that Fed. R. Civ. P.
20(a) did not allow Waite to join his proposed claims naming new defendants. See Doc. No. 26.
In the instant (second) motion to amend (Doc. No. 71) seeking to add new claims, join
new defendants, and obtain preliminary injunctive relief, Waite alleges facts regarding his
transfer to the NHSP in March 2025 and other incidents that occurred at the NHSP over the
course of three weeks in March/April 2025, involving corrections officers who are not
defendants in this case. That transfer and Waite’s access to his legal work in his NHSP cell are
form the basis of his claims for preliminary injunctions in that motion (Doc. No. 71).
Waite alleges that around midnight on March 25, 2025, NCF Sgt. Custis told Waite to
pack up his property as he would be moving to NHSP. Sgt. Custis offered no reason for the
move. Waite’s transfer occurred without notice and in the absence of the transitional planning
meeting he expected to be provided at least five days before a move, which he asserts his mental
health providers had ordered because of his mental health diagnosis. Waite asserts that although
Sgt. Custis seemed “respectful” of Waite’s legal work during the transfer, his papers became
disorganized and some “seemed to be missing.”
Waite further alleges that he passed through the “R&D unit” at the NHSP on his way to
his NHSP housing unit, after that transfer, at a time when the DOC Commissioner was present.
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In the R&D unit, Waite underwent a strip search in full view of “any staff member passing by.”
Doc. No. 71.
A short while after his arrival at his NHSP housing unit, NHSP Sgt. Cordova and two
other corrections officers searched his cell. They broke Waite’s pen and a pencil sharpener and
left his reorganized legal papers once again in disarray. Waite asserts that the officers took
copies of filings supporting his (first) motion to amend the complaint in this case, characterizing
those papers as “contraband” or “excess/nuisance” property. In addition, Waite asserts that
records of his grievance activities relating to his claims in this case are among the papers he lost.
Waite alleges that around the time of that search or afterwards, NHSP Sgt. Cordova told Waite
that “this” would stop when Waite’s lawsuits were dropped or dismissed because he missed
deadlines. Doc. No. 71, at 3. Waite, a participant in two cases in state court and in two cases in
federal court at the time,1 understood the remark to mean that when Waite stopped litigating, he
could expect an end to the “harassment, searches, retaliation, etc.” Doc. No. 71, at 3.
On April 15, 2025, Capt. Totten threatened to remove more of Waite’s legal files from
his cell, telling him that the volume of paperwork presented a “fire hazard.” Id. Waite asserts
that his cell’s paperwork at the time included state court records pertinent to his pending petition
for a writ of habeas corpus under 28 U.S.C. § 2254.
1 In March/April 2025, Waite was litigating this case; his petition for a writ of habeas
corpus under 28 U.S.C. § 2254, see Waite v. N.H. State Prison Warden, No. 19-cv-00259-LM-
AJ (D.N.H.); and two other cases in state court that are presently closed, Waite v. Riendeau, No.
214-2023-CV-00030 (N.H. Super. Ct., Coos Cty.), and Waite v. N.H. Legal Assistance, No. 214-
2025-CV-00043 (N.H. Super. Ct., Coos Cty.). In addition, Waite planned to file one or more
new prison conditions cases asserting claims regarding his NCF conditions that were the subject
of his unsuccessful (first) motion to amend in this case. See May 15, 2024 Order (Doc. No. 10)
(denying motion to amend).
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On April 16, 2025, Waite prepared the instant motion for filing. Waite’s proposed claims
in Document No. 71, which he asserts against the DOC Commissioner, NCF Warden, NHSP
Warden, and their subordinates (identified below), are the following:
• Waite’s abrupt March 25, 2025 transfer to the NHSP, in the manner effected by
NCF Sgt. Custis -- involving the disorganization and possible loss of some legal
papers, the lack of notice or reason for the transfer, and lack of a 5-day pre-move
transitional planning meeting as ordered by his mental health providers -- was an
adverse act in retaliation for Waite’s First Amendment activities;
• The R&D strip search at the NHSP, conducted in view of any staff member
passing by, violated Waite’s Fourth Amendment rights and was an adverse act in
retaliation for Waite’s First Amendment activities;
• The March/April 2025 search of Waite’s cell by Sgt. Cordova and two other
NHSP officers, resulting in the confiscation or destruction of Waite’s legal
paperwork and other property, was an adverse act in retaliation for Waite’s First
Amendment activities;
• NHSP Capt. Totten’s April 15, 2025 remarks, threatening to reduce the volume of
paper Waite could keep in his cell, was an adverse act in retaliation for Waite’s
First Amendment activities; and
• Waite loss of access to paperwork in his NHSP cell violates Waite’s right of
access to the courts, as the lost papers encompass records of Waite’s exhaustion
activities relating to this case, parts of the state trial record underlying his § 2254
petition, and copies of filings relating to Waite’s (first) motion to amend (Doc.
No. 10) which he planned to file in connection with new civil rights complaints.
Waite seeks a preliminary injunction ordering his transfer back to NCF, an order preventing the
removal of papers from his cell, and an order requiring the return of his legal work. Doc. No. 71.
Discussion
I. New Claims against DOC Commissioner and Wardens
A. Rule 15(d) Requirements
Waite’s motion proposes to add new claims under 42 U.S.C. § 1983 against supervisory
officials who are parties to this case. Federal Rule of Civil Procedure 15(d) allows this court,
“on just terms,” to allow a plaintiff to serve a supplemental pleading, “setting out any
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transaction, occurrence, or event that happened after the date of the pleading to be
supplemented.” Fed. R. Civ. P. 15(d). Adequate reasons for denial of leave to add such claims
include futility of the supplemental pleading. See Graham v. Sabol, 734 F. Supp. 2d 194, 203
n.16 (D. Mass. 2010); see also Glassman v. Computervision Corp., 90 F.3d 617, 622 (1st Cir.
1996).
“‘Futility’ means that ‘the complaint, as amended, would fail to state a claim upon which
relief could be granted.’” Glassman, 90 F.3d at 623 (citation omitted). To determine whether
plaintiff has stated an actionable claim, the court strips away the legal conclusions, accepts
plaintiff’s factual allegations as true, construes reasonable inferences in plaintiff’s favor, and
determines “whether the factual allegations . . . set forth a plausible claim upon which relief may
be granted.” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71, 75 (1st Cir. 2014) (quotation
marks and citation omitted). As Waite is pro se, his pleadings are afforded a liberal construction.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
B. Supervisory Liability
1. Standard for Supervisory Liability under § 1983
Waite’s proposed new claims asserting violations of his federal rights naming the
Commissioner and facility Wardens as defendants implicate the standard for supervisory
liability. “Generally, a supervisor cannot be held liable under § 1983 on a respondeat superior
theory.” Justiniano v. Walker, 986 F.3d 11, 20 (1st Cir. 2021). “[N]or can a supervisor’s section
1983 liability rest solely on his position of authority.” Guadalupe-Báez v. Pesquera, 819 F.3d
509, 515 (1st Cir. 2016). The liability of a supervisor must be based on his or her own actions
or inactions, or on a showing that his or her conduct “‘led inexorably to’” a subordinate’s
violation of the plaintiff’s constitutional rights. Justiniano, 986 F.3d at 20 (citation omitted). Put
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differently, if the plaintiff shows that one of the supervisor’s subordinates abridged his
constitutional rights, then the plaintiff must also show that “the supervisor’s action or inaction
was affirmatively linked to that behavior in the sense that it could be characterized as
supervisory encouragement, condonation, or acquiescence or gross negligence amounting to
deliberate indifference.” Guadalupe-Báez, 819 F.3d at 514-15 (cleaned up) (citations omitted).
Facts showing no more than a supervisor’s mere negligence vis-á-vis his
subordinate's misconduct are not enough to make out a claim of supervisory
liability. At a minimum, the plaintiff must allege facts showing that the
supervisor’s conduct sank to the level of deliberate indifference.
Parker v. Landry, 935 F.3d 9, 15 (1st Cir. 2019). “And even if the complaint contains facts
plausibly showing deliberate indifference, the plaintiff must also allege facts” showing that the
“supervisor's deliberate indifference . . . [led] in a straight line to the putative constitutional
violation.” Id.
2. Supervisory Liability for Transfer to the NHSP
To prevail on a First Amendment retaliation claim, a prisoner must show that he engaged
in protected activity, that defendants took an adverse action against him that would deter
a prisoner of ordinary firmness from continuing to engage in that conduct, and that there
is a causal link between the protected activity and the adverse action.
Turner v. Wall, No. 18-1869, 2020 WL 5543935, at *1, 2020 U.S. App. LEXIS 30047, at *3 (1st
Cir. May 5, 2020) (citing Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011)). Adverse acts not
deemed capable of deterring the First Amendment activities of “prisoners of ordinary firmness”
are considered “de minimis” acts, and de minimis acts cannot form the basis of actionable
retaliation claims under § 1983.
In general, a prisoner’s in-state transfer from the general population of one prison to
another “is merely an ordinary incident of prison life” that courts may deem to be de minimis
and dismiss at the summary judgment stage. Jones v. Caruso, 421 F. App'x 550, 553 (6th Cir.
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2011) (citation omitted). Cf. Hannon, 645 F.3d at 49 (transfer from medium security facility to
maximum facility in another state was adverse action). Courts have excepted from this general
rule “exceptional cases” where “foreseeable, negative consequences ‘inextricably follow’ from
the transfer,” such as cases in which the transfer necessarily involved the “prisoner’s loss of his
high-paying job and reduced ability to meet with his lawyer.” Id. In such cases, whether the
transfer was de minimis is a question of fact. Id.
A plaintiff asserting a claim of a non de minimis transfer has the ultimate burden of
showing that unlawful retaliation for the prisoner’s exercise of his First Amendment rights was
the but-for cause of the transfer. See McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979); Hudson
v. MacEachern, 94 F. Supp. 3d 59, 68 (D. Mass. 2015); see also Holleman v. Zatecky, 951 F.3d
873, 879 (7th Cir. 2020) (“a transfer initiated to punish a prisoner for engaging in protected
activity would satisfy the causation element of retaliation, but a transfer initiated as a rational,
justifiable response to the substance of the prisoner's complaint would not”).
Waite claims that he was transferred for no disclosed reason to the NHSP without notice
and in contravention of the transitional planning meeting prescribed by his mental health care
providers during a period of time when he was actively litigating state and federal cases naming
the Commissioner and Wardens as defendants, including this case. The central problem with
Waite’s retaliatory transfer claims is his decision to name only the highest level state prison
officials as defendants. He has pleaded facts suggesting that they authorized or signed off on his
transfer. But he has not pleaded that they did so with any subjective awareness of the manner in
which the transfer would occur or the conditions he would encounter at the NHSP. The approval
of a transfer from one facility’s general population to another did not inevitably lead to the
officers’ failure to follow his mental health providers’ prescribed protocols. There is no straight
line connecting any alleged deliberate indifference of those high-level supervisors to the loss,
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destruction, or confiscation of Waite’s legal papers effected by their subordinate officers; the
limits on Waite’s hours of law library time; or his placement in an NHSP unit with more
prisoners per cell, no desk, and less privacy in the dayroom. Waite has thus failed to state a
§ 1983 claim upon which relief can be granted with respect to the high-level supervisory officials
arising from his transfer to the NHSP. Accordingly, the district judge should deny as futile his
request to add those claims here.
3. Supervisory Liability for Remaining Incidents in Document No. 71
Waite’s pleadings also allege facts regarding his strip search in the R&D unit; the search
of Waite’s cell and loss of his legal paperwork; Sgt. Cordova’s remarks linking Waite’s lawsuits
to all of “this”; and Capt. Totten’s April 15 threat to reduce the volume of paper in Waite’s cell.
Waite asserts no non-conclusory facts showing that the DOC Commissioner’s and Wardens’ own
acts or omissions led inexorably to their subordinates’ conduct at issue. Accordingly, without
expressing any opinion regarding the potential merit (or lack thereof) of any claim Waite could
assert against the subordinate officers, the district judge should deny as futile Waite’s request to
add supervisory liability claims under § 1983 against the Commissioner and Wardens.
III. New Claims Asserted against Non-Parties
To the extent Waite seeks to join Sgt. Custis, Sgt. Cordova, Capt. Totten, and the other
corrections officers involved in the incidents in Document No. 71 as new defendants, Waite must
also satisfy the requirements of Fed. R. Civ. P. 20(a), concerning the permissive joinder of
parties and claims. “[I]t is well-settled that parties are misjoined when the preconditions for
permissive joinder in Rule 20(a) are not met.” Beaulieu v. Concord Group Ins. Co., 208 F.R.D.
478, 479 (D.N.H. 2002). Misjoined parties may be dropped from a case at any time. Fed. R.
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Civ. P. 21. The standard this court applies to a motion to join new defendants was set forth when
this court denied Waite’s (first) motion to add new claims and new parties to this case:
Under Rule 20(a), a plaintiff may join multiple defendants in a single action [1] if
the plaintiff asserts against each of them at least one claim to relief that arises out
of the same transaction or occurrence, or series of transactions or occurrences, and
[2] if there are questions of law or fact common to all. If the standard for
permissive joinder of defendants is met, then a party may join as many claims as
it has against one or more of those parties . . . .
To meet the first prong of Rule 20(a)(2) test for permissive joinder of parties, “the
claims must be ‘logically related’ to each other, although “[a]bsolute identity of
all events is unnecessary.’”
Apr. 18, 2024 R&R (Doc. No. 25) at 7-8 (citations omitted), approved by May 15, 2024 Order
(Doc. No. 26).
The “logical relationship test [in Rule 20(a)(2)] is met where there is substantial
evidentiary overlap in the facts giving rise to the cause of action of each defendant.” Corker v.
EzCater, Inc., No. 24-cv-12888-DJC, 2025 WL 2076698, at *6, 2025 U.S. Dist. LEXIS 140832,
at *16 (D. Mass. July 23, 2025) (cleaned up). Sgt. Custis, Capt. Totten, Sgt. Cordova, and the
other unnamed corrections officers whose acts are described in Document No. 71 are not parties
to any other claim presently in this case. The claims relating to the transfer, the R&D strip
search, the March/April cell search, the loss of paperwork, and the April 15 threat to reduce the
volume of papers in Waite’s cell arise from completely different transactions or occurrences than
Waite’s religious rights and nutrition claims proceeding in this case. Waite has not pleaded facts
suggesting that there is any substantial evidentiary overlap between any incident in Document
No. 71 and the claims proceeding against any defendant already a party to this case. None of the
proposed new defendants is a co-defendant to any claim proceeding here.
Unrelated prisoner civil rights claims against different defendants belong in different
suits, to prevent this case from becoming a case management “morass” and to help ensure the
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efficacy of the Prison Litigation Reform Act's “three strikes” provision. George v. Smith, 507
F.3d 605, 607 (7th Cir. 2007). The proposed new claims against Sgt. Custis, Sgt. Cordova, Capt.
Totten, and the unnamed corrections officers involved in the NHSP strip search and cell search
are not properly joined with the claims proceeding here against the existing defendants.
Accordingly, the district judge should deny Waite’s motion to add his new claims and new
defendants to this case, without prejudice to his ability to litigate such claims in a separately filed
prisoner civil rights action.
Request for Preliminary Injunctive Relief
“[P]reliminary injunctive relief is ‘an extraordinary and drastic remedy that is never
awarded as of right.’” Harry v. Countrywide Home Loans, Inc., 215 F. Supp. 3d 183, 186 (D.
Mass. 2016) (citations omitted). A party seeking preliminary injunctive relief must establish that
“‘he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the
public interest.’” Glossip v. Gross, 576 U.S. 863, 876 (2015) (citation omitted). The burden of
proof is on the movant. Esso Std. Oil Co. v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006).
The likelihood of success and irreparable harm are factors that weigh most heavily in the
analysis. See Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32
(1st Cir. 2011). "To demonstrate likelihood of success on the merits, plaintiffs must show 'more
than mere possibility' of success — rather, they must establish a 'strong likelihood' that they will
ultimately prevail." Sindicato Puertorriqueño de Trabajadores, SEIU Local 1996 v. Fortuño, 699
F.3d 1, 10 (1st Cir. 2012) (per curiam) (citations omitted).
A showing that the applicant will likely suffer irreparable harm before the case comes to
an end is perhaps the “single most important prerequisite for the issuance of a preliminary
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injunction.” Voice of the Arab World, 645 F.3d at 32 (quotation marks omitted) (citing 11A C.
Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2948, at 129 (2d ed. 1995)).
“Irreparable harm most often exists where a party has no adequate remedy at law.” Charlesbank
Equity Fund II, Ltd. P'ship v. Blinds To Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004). “A finding
of irreparable harm must be grounded on something more than conjecture, surmise, or a party's
unsubstantiated fears of what the future may have in store.” Id. The court may rule on a motion
for a preliminary injunction without a hearing where, as here, it has before it “adequate
documentary evidence upon which to base an informed, albeit preliminary conclusion,” and the
parties have been afforded “a fair opportunity to present relevant facts and arguments to the
court, and to counter the opponent’s submissions.” Campbell Soup Co. v. Giles, 47 F.3d 467,
470-71 (1st Cir. 1995) (internal quotation marks and citation omitted).
Waite’s proposed injunctions are premised on the new § 1983 claims he seeks to add to
this case through Document No. 71. For reasons stated in this Report and Recommendation,
Waite has failed to state an actionable claim against any of the existing defendants, including the
DOC Commissioner, the NCF Warden, and the NHSP Warden, arising from those allegations.
And whether or not Waite’s claims against the non-party subordinate corrections officers might
succeed if properly pleaded in a new case against them, this Report and Recommendation
explains why those claims and parties may not be litigated in this case. Accordingly, Waite has
not and cannot show that he will succeed on the merits of those claims here.
Moreover, Waite’s two state cases are now closed, and he has counsel in his § 2254 case.
Waite filed a new case in recent weeks, see Waite v. Burke, No. 1:26-cv-00112-LM-TSM
(D.N.H.), asserting new conditions of confinement claims relating to the NHSP. The exhaustion
issues in this case (and in that new case, if any) remain unbriefed and unripe for disposition.
And in this case, defendants produced more than 2000 pages of records in July 2025, including
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grievance records, which plaintiff evidently received and reviewed. See Doc. No. 92, at 2.
Waite’s court-ordered return to NCF, retrieval of papers removed from his cell in March/April
2025, and continuous court-ordered access to all of his legal papers at this time does not appear
presently necessary to avoid any irreparable, nonspeculative harm relating to this case, his
§ 2254 petition, or any other pending or planned case. Accordingly, the district judge should
deny the motion for emergency injunctive relief (Doc. No. 71) without prejudice to Waite’s
ability to refile a similar motion if the claims forming the basis of that motion are presently in the
case or may be properly joined, and if Waite can show a likelihood of success and irreparable
harm, and that the balance of equities and public interest favor the relief he seeks.
Conclusion
For the foregoing reasons, the district judge should deny Waite’s motion for emergency
relief (Doc. No. 71), without prejudice. 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
February 24, 2026
cc: Richard A. Waite, pro se
Nathan W. Kenison-Marvin, Esq.
Michael P. DeGrandis, Esq.
Shawna P. Bentley, Esq.
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