Torres v. Manchester, NH, City of et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jeremy Torres
v. Civ. No. 22-cv-93-JL
City of Manchester, et al.
REPORT AND RECOMMENDATION
In this civil rights case, the court has under
consideration plaintiff Jeremy Torres’s motion to amend his
complaint to identify by name various defendants previously only
identified as “John Doe.” See Motions (Doc. Nos. 29, 30, 31, and
32).
Procedural Background
Mr. Torres filed his original complaint in March 2022,
asserting civil rights claims arising from police encounters in
Manchester New Hampshire in 2021, which he alleged, involved
false arrests and assaults by Manchester Police Department
(“MPD”) officers. As he was unable to identify the MPD officers
by name, the suit was initiated against ten “John Doe” officers.1
1 Mr. Torres also names ten MPD supervising officers in
“John Doe” capacities, but the supervisory claims were dismissed
after preliminary review of the complaint and the current
motions provide nothing to suggest that the dismissal of those
claims should be revisited.
Case 1:22-cv-00093-JL-AJ Document 43 Filed 04/23/24 Page 1 of 6

2
In January 2023, the court approved a discovery plan which,
among other items, set a July 3, 2023 deadline for Mr. Torres to
file an amended complaint identifying the John Doe defendants.
In August 2023, no amendment having been filed, the defendants
moved for judgment on the pleadings. The basis of the motion
was, in part, that Mr. Torres had not named any individuals in
place of the “John Does” and that the time for doing so had
passed. Following a case management conference on October 6,
2023, the court allowed Mr. Torres until October 20, 2023 to
file a motion to amend and the proposed amended complaint. Mr.
Torres was cautioned that his motion must state the reasons why
the court should find “good cause for extending the July 3, 2023
amendment deadline.
Mr. Torres timely responded, filing several documents with
“Motion to Amend” in the title. (Doc. Nos. 29, 30, 31, and 32).
The court construes those four documents, as well as the
original complaint (Doc. No. 1) as the entirety of the proposed
amended complaint. The defendants have timely objected to the
motion to amend.
Discussion
A party may amend its pleading once as a matter of course
within twenty-one days of serving it, within twenty-one days of
service of a motion to dismiss, or by leave of court, which
“should be freely given when justice so requires.” Fed. R. Civ.
Case 1:22-cv-00093-JL-AJ Document 43 Filed 04/23/24 Page 2 of 6

3
P. 15(a). But where a scheduling order is in place, “[a]
schedule may be modified only for good cause and with the
judge's consent.” Fed. R. Civ. P. 16(b)(4). Where the scheduling
order sets deadlines for amending the pleading and a motion to
amend is filed after that deadline, Rule 16(b)’s “good cause”
standard, rather than Rule 15(a)’s “freely given” standard
governs. See O'Connell v. Hyatt Hotels of P.R., 357 F.3d 152,
154-5 (1st Cir. 2004).
“Rule 16(b)’s ‘good cause’ standard emphasizes the
diligence of the party seeking the amendment.” O'Connell, 357
F.3d at 155. Under this inquiry, “[p]rejudice to the opposing
party remains relevant but is not the dominant criterion.” Id.
Rather, “‘[i]ndifference’ by the moving party” may preclude
leave to amend “irrespective of prejudice because such conduct
is incompatible with the showing of diligence necessary to
establish good cause.” Id. (citation omitted). “Particularly
disfavored are motions to amend whose timing prejudices the
opposing party by ‘requiring a re-opening of discovery with
additional costs, a significant postponement of trial, and a
likely major alteration in trial tactics and strategy ....’”
Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004)
(quoting Acosta-Mestre v. Hilton Int'l of P.R., Inc., 156 F.3d
49, 52 (1st Cir. 1998)). Moreover, “[a]s a case progresses, . .
Case 1:22-cv-00093-JL-AJ Document 43 Filed 04/23/24 Page 3 of 6

4
. the burden on a plaintiff seeking to amend a [pleading]
becomes more exacting.” Id.
“In determining whether to grant a motion to amend, the
Court must examine the totality of the circumstances and
‘exercise its informed discretion in constructing a balance of
pertinent considerations.’” U.S. ex rel. Hagerty v. Cyberonics,
Inc., 146 F. Supp. 3d 337, 342 (D. Mass. 2015) (quoting Palmer
v. Champion Mortg., 465 F.3d 24, 30–31 (1st Cir. 2006)); see
also Martins v. Vt. Mut. Ins. Co., 662 F. Supp. 3d 55, 60-61 (D.
Mass. 2023)(same), aff’d, 92 F.4th 325 (1st Cir. 2024)
The dispute here centers on plaintiff’s diligence in moving
to amend. The defendants assert that Mr. Torres had all the
information he needed to replace the John Doe defendants well
before the deadline. While Mr. Torres admits that he had body
camera footage of the incidents in question, and it appears he
had a list of officers present at the scenes of the two
incidents, the court is not persuaded that he had the
information he needed to connect the footage to the precise
actions of individual defendants. Moreover, Mr. Torres
indicated at the hearing that he was confused as to his
responsibilities and had difficulty accessing the court’s
electronic filing system. This is sufficient for the court to
find that Mr. Torres was not “indifferent,” see O’Connell, 357
F.3d at 155, but was appropriately diligent to allow him to
Case 1:22-cv-00093-JL-AJ Document 43 Filed 04/23/24 Page 4 of 6

5
amend the complaint. And while prejudice to the defendant is a
secondary factor, there appears to the court to be little
apparent prejudice in allowing this amendment. There has been
minimal discovery, and the substitution of names – rather than
the addition of new claims, is unlikely to be a surprise to the
defendants or create an additional burden in defending the case.
Accordingly, the court will order service of the amended
complaint under separate cover, with certain exceptions
explained below.2
Although the new caption lists Manchester Police Officers
Micheal Auger and Micheal Johnson as defendants, see doc. Nos.
29, 30, 31 and 32, neither of them are alleged to have committed
any acts against Mr. Torres. Accordingly, the motion to amend
should be denied as to them. In addition, the motion should be
denied as to Sgt. Micheal Caron, a supervisor, as supervisory
claims were previously dismissed. See Order (Doc. No. 9),
approving R&R (Doc. No. 3).
Conclusion
For the foregoing reasons, it is recommended that the
district judge grant Mr. Torres’s motion to amend, except to the
extent he seeks to name MPD Officers Micheal Auger and Micheal
2 Officer Justin Hood is the only defendant alleged to have
participated in both incidents. The remainder of the defendants
are alleged to have been involved in the incident that allegedly
took place in April 2021.
Case 1:22-cv-00093-JL-AJ Document 43 Filed 04/23/24 Page 5 of 6

6
Johnson, and MPD Sgt. Micheal Caron as defendants; and upon
approval of this Report and Recommendation, refer this matter to
the Magistrate Judge for a service order.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. Fed. R.
Civ. P. 72(b)(2). The fourteen-day period may be extended upon
motion. Failure to file any objection 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). Only those issues raised in the written objections to
this Report and Recommendation “‘are subject to review in the
district court,’” and any issues “‘not preserved by such
objection are precluded on appeal.’” Id. (citations omitted).
SO ORDERED.
______________________________
Andrea K. Johnstone
United States Magistrate Judge
April 23, 2024
cc: Jeremy Jason Torres, pro se
Dona Feeney, Esq.
David Betancourt, Esq.
Ronald Reape, Esq.
Case 1:22-cv-00093-JL-AJ Document 43 Filed 04/23/24 Page 6 of 6