Cremeans v. NH Department of Corrections, Commissioner et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Christopher Cremeans
v. 	Case No. 17-cv-572-SM
William Wrenn, Commissioner,
New Hampshire Department of
Corrections, et al.
REPORT AND RECOMMENDATION
Before the court is plaintiff Christopher Cremeans’s motion
to amend (Doc. No. 25) his complaint (Doc. No. 1) in this
matter. 	Construed liberally in light of Cremeans’s pro se
status, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), the
motion to amend appears to seek leave to add a claim to this
case alleging that defendants’ implementation of PPD 7.09 runs
afoul of a consent decree issued in a class action case in 1978,
see Laaman v. Helgemoe, Civ. No. 75-cv-258 (D.N.H.), which
related to the conditions of confinement at the New Hampshire
State Prison. 	Defendants object to the motion to amend. 	See
Doc. No. 27.
Standard
As a general matter, under Rule 15(a) of the Federal Rules
of Civil Procedure, “[l]eave to amend should be ‘freely given .
. . when justice so requires[,]’ absent an apparent or declared
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reason such as ‘futility of amendment.’” 	Rife v. One West Bank,
F.S.B., 873 F.3d 17, 20-21 (1st Cir. 2017) (citation omitted).
A proposed amendment is futile if the claim at issue would be
subject to dismissal. 	If the factual allegations comprising the
proposed claim, taken as true and with all reasonable inferences
drawn in plaintiff’s favor, would fail to state a claim upon
which relief could be granted, id. at 21, or would comprise a
claim that is not within the court’s subject matter
jurisdiction, a court may find a proposed amendment to be
futile, see Muskat v. United States, 554 F.3d 183, 195-96 (1st
Cir. 2009).
Discussion
In his original complaint, Cremeans asserted claims
alleging that the defendant prison officials in this case have
violated his First and Fourteenth Amendment rights to familial
association, due process, and equal protection, by denying him
visits with his minor grandson. 	Cremeans’s original complaint
also included claims that his federal constitutional rights were
violated when he was denied those visits in contravention of the
New Hampshire Department of Corrections (“DOC”) Policy and
Procedure Directive (“PPD”) 7.09, which “establish[es] a policy
and procedures for facilitating a safe, secure, orderly,
manageable and pleasant visiting process for persons under [DOC]
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custody with their family members and friends.” 	PPD 7.09, I
(Doc. No. 1, at 15).
That case was closed however, on July 6, 2001, when the
Laaman court approved the parties’ settlement agreement and
stipulation of dismissal. 	See Laaman (ECF No. 523). 	The July
6, 2001 Order in Laaman terminated federal court jurisdiction
over matters in that consent decree, and provided that the
Laaman consent decree’s terms, as modified by the settlement
agreement, would be enforceable only in the state courts of New
Hampshire. 	Id. 	This court therefore lacks original
jurisdiction over claims arising out of an alleged violation of
the Laaman Consent Decree. 	Cf. Dupont v. Dubois, 99 F.3d 1128,
1996 WL 649340, at *1 & n.3, 1996 U.S. App. LEXIS 29142, at *3 &
n.3 (1st Cir. 1996) (unpublished table decision) (order to
enforce federal consent decree or state court settlement
agreement is unavailable in individual action under 42 U.S.C. §
1983). 	Supplemental jurisdiction over such claims is also not
properly exercised here, claims of violations of Laaman
agreement would raise issues regarding plaintiff’s standing to
seek relief and defendants’ compliance that would be likely to
substantially predominate over the remaining claims here. 	Cf.
28 U.S.C. § 1367(c)(2). 	Cremeans’s proposed claims based on the
Laaman case are thus subject to dismissal for lack of
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jurisdiction, and, therefore, the district judge should deny the
motion to amend as futile.
Conclusion
For the foregoing reasons, the district judge should deny
Cremeans’s motion to amend (Doc. No. 25). 	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 specific written objections to the Report and
Recommendation 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
January 18, 2019
cc: 	Christopher Cremeans, pro se
Scott Edward Sakowski, Esq.
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