Widi, Jr. v. Federal Bureau of Prisons et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
David J. Widi, Jr.
v. Civil No. 14-cv-160-SM
Federal Bureau of Prisons et al.
REPORT AND RECOMMENDATION ON THIRD AMENDED COMPLAINT
Before the court in this consolidated case (“Widi I”) is
plaintiff David J. Widi, Jr.’s motion for leave to file the
Third Amended Complaint (Doc. No. 206). The (proposed) Third
Amended Complaint (Doc. No. 206-1), attached as an exhibit to
that motion, is before this court for consideration as to
whether it should be filed as the operative complaint, and for
preliminary review, pursuant to LR 4.3(d)(1) and 28 U.S.C.
§§ 1915(e)(2) and 1915A.
Widi filed two cases that this court subsequently
consolidated. See July 5, 2017 Consolidation Order (Doc. No.
224). The Amended Complaint (Doc. No. 226), which was
originally docketed on September 30, 2016 in Widi’s second case,
Widi v. United States, No. 16-cv-445-JL (D.N.H.) (“Widi II”), is
identical to the proposed Third Amended Complaint (Doc. No. 206-
1) (“TAC”), which Widi filed as an exhibit to the motion to
amend the complaint in Widi I on the same date. The TAC (Doc.
No. 206-1) and the Amended Complaint (Doc. No. 226) are the same
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document.1 The Amended Complaint is also subject to preliminary
review in this court, under LR 4.3(d)(1) and 28 U.S.C.
§§ 1915(e)(2) and 1915A.
The magistrate judge’s preliminary review of the Amended
Complaint is set forth in the “Report and Recommendation on
Amended Complaint” (issued this date). That Report and
Recommendation (“R&R”) recommends that the district judge deem
the Amended Complaint (Doc. No. 226) to be the operative
complaint in this action, and further recommends that certain
claims be dismissed and defendants be dropped from the case, for
reasons stated in that R&R. As the Amended Complaint is
identical to the TAC and has already been filed in this case,
the district judge should deny the motion for leave to file the
TAC (Doc. No. 206), to avoid adding a duplicative pleading to
this action.
Conclusion
For the foregoing reasons, the district judge should deny
the Motion for Leave to File the Third Amended Complaint (Doc.
No. 206). Any objections to this “Report and Recommendation on
1The court’s copy of the Amended Complaint (Doc. No. 226)
was missing pages 78-79 and paragraphs 482-98 when it was
originally docketed. Those pages and paragraphs are included in
the Third Amended Complaint (see Doc. No. 206-1, at 78-79) and
are deemed by the court to be part of the Amended Complaint.
The Order this date corrects that clerical error.
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Third Amended Complaint” 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 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
July 17, 2017
cc: David J. Widi, Jr., pro se
T. David Plourde, Esq.
Terry L. Ollila, Esq.
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