UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Carlos Lopez

v. Civil No. 06-cv-305-PB

Somersworth Police Department, et al.

REPORT AND RECOMMENDATION

Carlos Lopez has moved to amend the complaint in this matter

to add two claims, both alleging violations of his Fourteenth

Amendment rights and to add a defendant to this action (document

nos. 16 & 21). Defendants object (document no. 17).

Standard of Review

Under Fed. R. Civ. P. 15(a), leave to amend a complaint

“‘shall be freely given when justice so requires,’ unless the

amendment would be futile or reward undue delay.” Adorno v.

Crowley Towing & Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006),

(quoting Fed. R. Civ. P. 15(a)). In assessing futility, the

Court applies the same standard it applies to a motion to dismiss

under Fed. R. Civ. P. 12(b)(6). Adorno, 443 F.3d at 126. 

In considering a motion to dismiss under Fed. R. Civ. P.

12(b)(6), the court accepts the facts alleged in the complaint as

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true and determines whether “relief could be granted under any

set of facts that could be proved consistent with the

allegations.” Lalonde v. Textron, Inc., 369 F.3d 1, 6 (1st Cir.

2004) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514

(2002)). The Court draws all reasonable inferences from the

facts alleged in the plaintiff’s favor. Martin v. Applied

Cellular Tech., 284 F.3d 1, 6 (1st Cir. 2002). Dismissal of the

complaint is appropriate only if “it clearly appears, according

to the facts alleged, that the plaintiff cannot recover on any

viable theory.” Langadinos v. Am. Airlines, Inc., 199 F.3d 68,

69 (1st Cir. 2000). Applying this standard to the assertions in

Lopez’s motion to amend, I find the facts as follows.

Background

Carlos Lopez, a federal prisoner serving his sentence in the

Federal Correctional Institute located at Fort Dix, New Jersey,

filed this diversity action seeking damages against defendants,

members of the Somersworth Police Department. Lopez’s initial

claims allege that the defendants failed to provide Lopez with

information that had been properly requested under New

Hampshire’s Right to Know statute, N.H. Rev. Stat. Ann. 91-A, et

seq. Defendants filed a motion to dismiss, alleging that

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1373 U.S. 83, 87 (1963) (suppression by prosecution of

evidence favorable to an accused person upon request violates due

process where evidence is material either to guilt or to

punishment)

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diversity jurisdiction is improper in this case, as the amount in

controversy was not alleged in good faith, and that the damages

in the case clearly do not exceed $75,000, as is required to

establish diversity jurisdiction in this Court. See 28 U.S.C. §

1331(a) & (b) (requiring complete diversity of citizenship of the

parties and an amount-in-controversy exceeding $75,000 to

establish federal jurisdiction over a claim brought under state

law). 

Lopez claims that since the time he originally filed his

complaint on August 17, 2006, he has received documents that

contain evidence demonstrating that a key witness against him at

trial perjured herself, and that the government delayed providing

Lopez timely access to exculpatory material for his criminal

trial in violation of Brady v. Maryland.

1 Specifically, Lopez

has obtained transcripts of the trial testimony of Jennifer

Weber. Weber testified at Lopez’s trial that at the time she

provided evidence to the government incriminating Lopez, she had

recently been arrested for felony drug possession, and had become

a confidential informant to Somersworth Police Captain Kretchmar. 

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Weber testified that when she was arrested she was also

potentially subject to a previously suspended 12-month jail

sentence. Weber testified that the drug possession case was

dismissed due to a problematic search of her purse, rather than

pursuant to any deal with the prosecution for her testimony

against Lopez. 

Since his complaint was filed, Lopez has also obtained, and

now submitted, police reports that state that at the time Weber

was arrested, she consented to the search of her purse. Lopez

alleges that this demonstrates both that Weber perjured herself

on the stand regarding her own motivation to testify against

Lopez, and that the government withheld exculpatory information

from him regarding a deal he alleges was made between the

prosecution and Weber in order to secure Weber’s assistance and

testimony against Lopez. Lopez alleges that these factors

support claims that his Fourteenth Amendment rights were

violated. It is these claims he seeks to add to the complaint at

this time. 

Discussion

Lopez asserts that he was denied access to exculpatory

information prior to his trial, and that as a result, his

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242 U.S.C. § 1983 provides that:

Every person who under color of any statute, 

ordinance, regulation, custom, or usage, of any 

State or Territory or the District of Columbia, 

subjects, or causes to be subjected, any citizen of

the United States or other person within the 

jurisdiction thereof to the deprivation of any 

rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party 

injured in an action at law . . . .

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conviction was obtained by violating his due process rights. 

These claims arise under 42 U.S.C. § 1983. Section 1983 creates

a cause of action against those who, acting under color of state

law, violate federal constitutional or statutory law. See 42

U.S.C. § 19832; Parratt v. Taylor, 451 U.S. 527, 535 (1981)

(overruled on other grounds by Daniels v. Williams, 474 U.S. 327,

330-331 (1986)); Wilson v. Town of Mendon, 294 F.3d 1, 6 (1st

Cir. 2002). 

Under Heck v. Humphrey, a state prisoner’s claim for damages

is not cognizable under § 1983 if a judgment for the prisoner

would “necessarily imply” that the conviction or sentence was

invalid unless and until the inmate obtains favorable resolution

of a challenge to his conviction. 512 U.S. 477, 486-87 (1994). 

“A claim for damages bearing that relationship to a conviction or

sentence that has not been invalidated is not cognizable under §

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3On February 8, 2007, Lopez’s Fed. R. Civ. P. 60(b) motion,

originally filed in this Court, was referred to the United States

Court of Appeals for the First Circuit. In its Order referring

the case, the court also characterized Lopez’s claims as

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1983” and must be dismissed. Id. at 487 (emphasis in original);

see Thore v. Howe, 466 F.3d 173, 178 (1st Cir. 2006) (same). 

Here, Lopez claims that his trial violated his due process

rights because he was not provided with relevant and material

exculpatory evidence and because a witness against him committed

perjury. In other words, Lopez claims that his conviction

violated his Fourteenth Amendment rights and was, therefore,

unconstitutional. If this Court were to ultimately find, as

Lopez asks, that there was information withheld from him prior to

his trial that tainted the validity of his conviction, the court

will have “necessarily implied” the invalidity of Lopez’s

conviction. The claims that Lopez seeks to add to his complaint,

therefore, are barred by Heck unless and until Lopez’s conviction

has been successfully challenged. See Heck, 512 U.S. at 487.

Lopez has, in fact, initiated a challenge to his conviction

pursuant to Fed. R. Civ. P. 60(b) based on the same evidence that

forms the basis of the claims he seeks to add to this suit. That

challenge has not yet been resolved, and therefore, Lopez’s

conviction has not, at this time, been invalidated.3 Therefore,

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“direct[] challenges [to] the constitutionality of his underlying

conviction” and as speaking “directly to whether petitioner is

entitled to relief from the underlying conviction and sentence,

due to errors in the trial process itself.” See United States v.

Lopez, Civ. No. 06-004-SM (Order Transferring Case, issued Feb.

8, 2007).

4The defendant that Lopez seeks to add is relevant only to

the § 1983 claims. Accordingly, I recommend that Lopez not be

permitted to add Capt. Kretchmar as a defendant to this action at

this time as there are no claims pending against him.

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the proposed amendments seek to add claims that are futile as,

under Heck, they cannot be redressed by this Court at this time. 

I find, therefore, that Lopez’s motion to amend does not state §

1983 claims upon which relief may be granted and instead states

claims that are futile, and I recommend that the motion to amend

be denied.4 

Any objections to this report and recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of 

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Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992);

United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: April 3, 2007

cc: Carlos Lopez, pro se

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