Paige et al v. FCI Berlin, Warden et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Lamont Paige
v. 	Case No. 18-cv-670-SM
FCI-Berlin Warden Robert Hazlewood,
(former) FCI-Berlin Religious
Services Assistant FNU Feliciano,
and FCI-Berlin Chaplain FNU Thompson
REPORT AND RECOMMENDATION
This court’s September 30, 2019 Order granted plaintiff
Lamont Paige’s motion to amend the complaint (Doc. No. 19), in
which Paige sought leave to add a demand for money damages to
this action, and to add new claims for damages against the
current Federal Correctional Institution, Berlin, New Hampshire
(“FCI-Berlin”) chaplain, Mr. Thompson, and existing defendant
FCI-Berlin Warden Robert Hazlewood. 	The September 30, 2019
Order further dismissed all of the claims that had been asserted
in this case by plaintiff Kevin Whitaker, who is no longer a
party in this case.
The court liberally construes the filing docketed as
plaintiff’s “Motion to Amend Complaint” and its exhibit,
“Declaration of Lamont Paige,” to be the Amended and
Supplemental Complaint (Doc. Nos. 19, 19-1). 	The Amended and
Supplemental Complaint is before this court for preliminary
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review pursuant to 28 U.S.C. § 1915A and LR 4.3(d)(1).1 	In the
Order issued simultaneously with this Report and Recommendation,
the court directs service upon new defendant Chaplain Thompson
and directs defendants to file an answer or other response to
the three new claims Paige has asserted, which are summarized in
that Order as Claims 4-6.2
In the Amended and Supplemental Complaint, in addition to
Claims 4-6, Paige asserts new claims for negligent infliction of
emotional distress and intentional infliction of emotional
distress. 	Plaintiff has not alleged, however, that he has
suffered any physical symptoms resulting from the emotional
distress, and he has not pleaded any non-conclusory facts
regarding the severity of the emotional distress he has
suffered. 	He has thus failed to state claims upon which relief
can be granted under state law for negligent or intentional
infliction of emotional distress arising in New Hampshire, or
under the Federal Tort Claims Act. 	See Tessier v. Rockefeller,
1In conducting this preliminary review, the court applies
the standard set forth in the July 31, 2018 Order (Doc. No. 4,
at 2-3).
2At this preliminary stage of the case, the court declines
to address the appropriate disposition of the federal
constitutional claims upon which plaintiff presently seeks
damages, deeming that matter appropriately considered only after
the court has the benefit of briefing from the parties as to
whether damages are available under Bivens v. Six Unknown Named
Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
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162 N.H. 324, 342, 33 A.3d 1118, 1132 (2011); Morancy v.
Morancy, 134 N.H. 493, 496, 593 A.2d 1158, 1160 (1991); see also
28 U.S.C. § 1346(b)(1). 	Accordingly, the district judge should
dismiss the negligent and intentional infliction of emotional
distress tort claims asserted in the Amended and Supplemental
Complaint.
Conclusion
For the foregoing reasons, the district judge should
dismiss the tort claims asserted in the Amended and Supplemental
Complaint (Doc. Nos. 19, 19-1). 	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
December 2, 2019
cc: 	Lamont Paige, pro se
Kevin Whitaker, pro se
Michael T. McCormack, Esq.
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