Morales v. NH Attorney General et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Irvin Morales
v. 	Case No. 17-cv-234-SM
CO John Doe #2, Jon Fouts,
and Roderick Greenwood
SUPPLEMENTAL REPORT AND RECOMMENDATION
Following remand from Judge McAuliffe (Doc. No. 96), the
court has before it defendants’ motion to reconsider 1 the
undersigned Magistrate Judge’s April 13, 2021 Report and
Recommendation (Doc. No. 91) (“April 13 R&R”) that the district
judge grant plaintiff’s motion for leave to amend his complaint
to replace defendant John Doe #2 with Todd Blair Carr, Jr., as a
party. 	(Doc. No. 84). 	The gist of defendants’ motion is that
the April 13 R&R erroneously applies the doctrine of equitable
tolling to plaintiff’s motion to amend. 	For the reasons that
follow, the court again recommends that the district court grant
plaintiff’s motion.2
1 Although defendants filed the motion as an objection to the
court’s previous Report and Recommendation (Doc. No. 91), Judge
McAuliffe construed it as a motion to reconsider in his remand
order. (Doc. No. 96).
2 As this Supplemental Report and Recommendation follows
Judge McAuliffe’s order to further analyze the potential
application of equitable tolling on plaintiff’s motion to amend,
the court here addresses only that issue in this supplement. The
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Standard of Review
The standard applied by the Magistrate Judge in considering
whether to reconsider a Report and Recommendation is the same
standard that applies when a party moves for reconsideration of
an interlocutory order in this court: 	the movant must
“demonstrate that the order was based on a manifest error of
fact or law.” 	LR 7.2(d). 	“[M]otions for reconsideration are
appropriate only in a limited number of circumstances: if the
moving party presents newly discovered evidence, if there has
been an intervening change in the law, or if the movant can
demonstrate that the original decision was based on a manifest
error or law or was clearly unjust.” 	Dionne v. Fed. Nat'l
Mortg. Ass'n, 110 F. Supp. 3d 338, 341 (D.N.H. 2015)) (quoting
United States v. Allen, 573 F.3d 42, 53 (1st Cir. 2009)).
Discussion
Where, as here, the court “borrows a state statute of
limitations it must also borrow the analogous state tolling
rules, at least to the extent they are consistent with federal
law.” 	Hebert ex rel. Hebert v. Manchester Sch. Dist., 833 F.
Supp. 80, 84 (D.N.H. 1993); 	see also Portsmouth Country Club v.
Town of Greenland, 883 A.2d 298, 304 (N.H. 2005) (observing that
“[a] party attempting to invoke [equitable tolling] doctrine
April 13 R&R (Doc. No. 91) should be read in tandem with this
supplement.
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will be held to a duty of reasonable inquiry”) (quoting
Protective Life Ins. Co. v. Sullivan, 682 N.E.2d 624, 635 (Mass.
1997)).
Defendants’ argument on reconsideration boils down to two
related points. 	First, they argue that equitable tolling is
only applicable in “extraordinary circumstances for parties who
were prevented from complying with them through no fault or lack
of diligence of their own.” 	Def. Mot. (Doc. No. 93) at 3
(quoting Neves v. Holder, 613 F.3d 30, 36 (1st Cir. 2010)).
Second, defendants argue that the trail of this case shows that
the plaintiff has not been diligent in pursuing the identity of
the defendant originally identified as John Doe #2 as the person
who ordered the strip search. 	See Compl. (Doc. No. 1) ¶ 30.
While it is true that plaintiff did not engage in formal
discovery until 2019 to ascertain John Doe #2’s identity, it is
not accurate that “there is no record of Plaintiff exercising
diligence to discover the identity of John Doe #2 until roughly
a whole year after the statute of limitations had already
expired” in April 2018. 	Def. Mot. (Doc. No 93) at 6. 	As
detailed below, the court ordered the defendants to provide John
Doe #2’s identity on multiple occasions, plaintiff sought to
refine his description of John Doe #2 in amended complaints, and
several delays in advancing the issue of ascertaining the
identity of John Doe #2 were attributable to the court.
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As noted above, John Doe #2 was first named in plaintiff’s
original complaint, filed in June 2017. 	(Doc. No. 1). 	The
court issued it preliminary review of that complaint in March
2018 (Doc. No. 10). 	The accompanying service order (Doc. No.
12) directed the defendants to identify John Doe #2. 3 	On May 4,
2018, the defendants indicated that “they could not conclusively
identify” John Doe #2. (Doc. No 16).
On May 10, 2018, plaintiff moved for leave to file an
amended complaint (Doc. No 17), which the court granted on May
29, 2018 and which the plaintiff filed on June 27, 2018. 	(Doc.
No. 19). 	After again getting leave of court, plaintiff filed a
Second Amended Complaint (“SAC”) on August 20, 2018, in which he
refined the description of John Doe #2 as “an acting
correctional officer during the party in question, and is
described as a white male, 5' 7”, 175 lbs. with a stocky build,
black hair, brown eyes, and in his 20's (age).” 	SAC (Doc. No.
27) at 7.
The court completed its preliminary review of the SAC on
January 3, 2019. 	(Doc. No. 29). 	The accompanying service order
(Doc. No. 30) withdrew the earlier R&R and service order and,
3 Although both the Report and Recommendation (Doc. No. 10)
and Service Order (Doc. No. 12) were later vacated after
preliminary review of subsequent amended complaints, see Order
(Doc. No. 30), the fact remains that plaintiff and the court
placed the identity of John Doe #2 at issue at the earliest
stage of the litigation.
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inter alia, again ordered the defendants to identify John Doe
#2, using the description plaintiff provided in the SAC. 	On
February 1, 2019, defendants again indicated it could not
identify John Doe #2, because none of the personnel fit
plaintiff’s physical description. 	(Doc. No. 34). 	Plaintiff
objected to defendants’ notice (Doc. No. 36) on February 13,
2019. 	He also asked, for the first time, for “Pre-case
discovery.” 	Id. 	Four months later, in June 2019, the court
granted plaintiffs request to conduct discovery. 	After
receiving discovery responses he deemed inadequate, plaintiff
filed a motion to compel (Doc. No 56) in September 2019. 	After
denying in part defendants’ motion to dismiss on March 24, 2020,
the court then ruled on plaintiff’s motion to compel in August
2020, at which time it noted that the defendant Major Fouts’s
responses were deficient in one respect:
“Missing from his response are statements
indicating that he asked the relevant set of
subordinate officers if they were at the holiday
party, and a record of their responses. Given the
potential importance of such evidence to identifying
CO John Doe 2; pro se inmate Mr. Morales’s practical
impediments to obtaining the same information
otherwise; the ready availability of that information
to Major Fouts from sources within his control; and
the relative ease with which that inquiry could be
completed, the court concludes that Major Fouts is
required to undertake that inquiry as part of his
response to Interrogatory 1.”
Order (Doc. No. 82) at 6. 	The court then ordered defendant
Major Fouts to serve that discovery response regarding his
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subordinates by September 4, 2020. 	On September 22, 2020,
plaintiff moved to amend his complaint to replace John Doe #2
with Carr, an individual who defendants assert was not among
Maj. Fouts’s subordinates in September 2020 and was not part of
the court-ordered discovery served on plaintiff (See Doc. No.
84). 	In the motion to substitute John Doe #2, plaintiff
asserted that the court’s August 20, 2020 order helped him
ascertain Carr’s identity. 4
Ultimately, the court finds that plaintiff’s inclusion of
John Doe #2 in his original complaint (filed ten months before
the expiration of the statute of limitations), the court’s
orders directing defendants to identify John Doe #2, plaintiff’s
efforts to provide a description of John Doe #2 through
amendments to his complaint, and delays in reviewing those
4 The defendants assert that the spreadsheet they produced in
August 2019 (the production that spurred the motion to compel)
provided the plaintiff with all the information he needed to
identify Carr as John Doe #2 at that time, since the additional
information produced to plaintiff in September 2020 did not
include any new information about Carr (except, it appears, the
information that Carr no longer worked for the N.H. Department
of Corrections). 	Def. Obj. (Doc. No. 85) at 2 n.2. 	Therefore,
defendants argue, the additional delay from August 2019 to
September 2020 in seeking to substitute Carr for John Doe #2
should be attributed to the plaintiff. 	Given that the motion to
compel was pending from September 2019 through August 2020, and
that the instant Motion to Amend was filed shortly after the
court ruled on the motion to compel and defendant served the
court-ordered supplemental production, the court does not find
any substantial evidence of plaintiff’s lack of diligence in the
time that passed before that court-ordered production.
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complaints and plaintiff’s motion to compel, combine to push the
balance of equities in plaintiff’s favor. 	This is especially
true where, as here, information regarding John Doe #2’s
identity was within the exclusive possession and control of the
defendants.
Conclusion
Upon further consideration of plaintiff’s Motion to Amend,
and for the foregoing reasons as well as the reasons set forth
in the April 13 R&R, the district judge should:
1. Grant plaintiff’s motion to amend the Third Amended
Complaint (Doc. No. 84) to replace defendant John Doe
#2 with Todd Blair Carr, Jr. as a party, and to
excise previously dismissed claims from the
complaint.
2. Direct 	that 	the 	clerk's 	office 	docket 	plaintiff’s
proposed Fourth Amended Complaint (Doc. No. 84-1) as
the Fourth Amended Complaint.
3. Find that, upon approval of this R&R, the
Magistrate Judge should direct service of the
Fourth Amended Complaint upon defendant Carr.
Any objections to the April 13 R&R and/or this Supplement
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).
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_____________________________
Andrea K. Johnstone
United States Magistrate Judge
May 18, 2021
cc: 	Irvin Morales, pro se
Counsel of record
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