Filed: Dec. 02, 2019
Latest Update: Dec. 02, 2019
Summary: REPORT AND RECOMMENDATION ANDREA K. JOHNSTONE , Magistrate Judge . 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
Summary: REPORT AND RECOMMENDATION ANDREA K. JOHNSTONE , Magistrate Judge . 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 O..
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REPORT AND RECOMMENDATION
ANDREA K. JOHNSTONE, Magistrate Judge.
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 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, 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).