UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Timothy W. Hazelton 

 v. Civil No. 08-cv-419-JL 

William Wrenn, et al. 

REPORT AND RECOMMENDATION

Timothy Hazelton has filed an untitled document (doc. no. 

45), pro se, seeking to “reopen” his above-captioned civil 

rights action. This case was terminated upon the parties’ 

submission of a Stipulation of Dismissal (doc. no. 43) on 

December 8, 2010. Hazelton asserts that the parties, prior to 

dismissal of the action, entered into a private settlement 

agreement (“PSA”), and that defendants have now breached the 

terms of that agreement, warranting reinstatement of this 

action. Defendants object (doc. no. 47).

Discussion

I. The 2008 Civil Action

In this case, originally filed in 2008, Hazelton asserted 

claims challenging conditions of his confinement at the Northern 

New Hampshire Correctional Facility. The case was resolved by a 

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Stipulation of Dismissal (doc. no. 43) on December 8, 2010. The 

stipulation of dismissal states, in full:

NOW COME the Plaintiff, Timothy W. Hazelton, Sr., by 

and through his attorney, Michael Sheehan, Esquire, 

and the Defendants, by and through their attorney, the 

New Hampshire Attorney General’s Office, and submit 

the following Stipulation for this Court’s approval: 

Plaintiff and state defendants hereby stipulate that 

all claims in this action are dismissed as to the 

state defendants with prejudice. Case settled. 

Judgment for neither party; no costs; no interest; no 

further action for the same cause.

The stipulation, specifying that dismissal was “with prejudice,”

was signed by counsel for both parties and filed in this court. 

The case was terminated without further order of the court on 

the same day. Nothing in the record indicates that the court 

was aware of the terms of the PSA when the stipulation was 

filed; the PSA became part of this court’s record for the first 

time when defendants attached a copy of it to their October 5, 

2012, objection (doc. no. 47) to the motion to reopen. 

II. Motion to Reopen (Doc. No. 45)

Hazelton alleges that defendants breached the terms of the 

PSA,

1 and seeks to reinstate this action as a remedy for their 

 

1Hazelton, in his motion to reopen, complains about the 

conditions of his confinement at the prison, and alleged 

deficiencies in the performance of his prior attorney in this 

matter. The majority of the complaints listed in the motion are 

related neither to the claims in the underlying case, nor to the 

terms of the PSA. 

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breach. Defendants deny that they have breached the PSA. At 

issue here, however, is not the disagreement over whether the 

PSA has been breached, but whether reinstatement of this action 

is available to Hazelton. Accordingly, the court leaves aside 

the question of whether defendants breached the PSA. 

This court lacks jurisdiction to reinstate a case that was 

settled by a PSA and dismissed by a “with prejudice” stipulation 

of voluntary dismissal, as the court neither issued an order in 

which it retained that ability, nor included any terms of the 

settlement in an order dismissing the case. See Kokkonen v. 

Guardian Life Ins. Co. of Am., 511 U.S. 375, 381-82 (1994) 

(district court lacks jurisdiction to enforce the terms of a 

settlement agreement after the underlying federal court action 

has been dismissed with prejudice by stipulation of the parties 

under Rule 41(a)(1)(ii) of the Federal Rules of Civil 

Procedure). 

The Supreme Court recognized in Kokkonen that a United 

States district court may retain jurisdiction to 

enforce the provisions of a private settlement 

agreement even as it dismisses the litigation that the 

settlement resolves. If the court does not issue an 

order of dismissal that states it is retaining 

jurisdiction or incorporate the terms of the 

settlement agreement into the order of dismissal, 

enforcement of the settlement agreement is left for 

state courts, unless there is an independent basis for 

federal jurisdiction.

 

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Disability Law Ctr. v. Mass. Dep’t of Corr., C.A. No. 07-10463-

MLW, 2012 WL 1237760, *6 (D. Mass. Apr. 12, 2012) (citing 

Kokkonen, 511 U.S. at 381-82). 

Here, the parties neither obtained court approval of the 

terms of the PSA, included the PSA’s terms in the stipulation of 

dismissal, nor included any provision in the stipulation 

allowing the court to reinstate this matter for a breach of the 

terms of the PSA. Accordingly, the court retains no 

jurisdiction to either enforce the terms of the PSA or reinstate 

this matter. See Kokkonen, 511 U.S.at 382; Disability Law Ctr., 

2012 WL 1237760, at *6.

Hazelton is not, however, without a remedy if the 

defendants have in fact breached the PSA. When the terms of a 

private settlement agreement are breached, relief lies in a 

breach of contract action in the state courts. See Fafel v. 

DiPaola, 399 F.3d 403, 413 (1st Cir. 2005) (“In the absence of 

an independent basis for federal jurisdiction or one of the 

additional measures required to retain ancillary jurisdiction,

. . . ‘enforcement of the settlement agreement is for the state 

courts.’” (quoting Kokkonen, 511 U.S. at 382)); see also 18 

U.S.C. § 3626(c)(2)(B) (“Nothing in this section shall preclude 

any party claiming that a private settlement agreement has been 

breached from seeking in State court any remedy available under 

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State law.”). Hazelton may also be able to file a new action in 

state or federal court alleging that prison officials have 

violated his federal constitutional rights.2 But to enforce the 

PSA through a breach of contract action, Hazelton must proceed 

in state court. 

Conclusion

For the foregoing reasons, the court recommends that 

Hazelton’s motion to reopen (doc. no. 45) be denied, without 

prejudice to Hazelton filing either an action for breach of the 

PSA in state court, or a new action under 42 U.S.C. § 1983, 

based on allegations that prison officials have violated his 

federal constitutional rights. 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). Failure to file 

objections within the specified time waives the right to appeal 

the district court’s order. See United States v. De JesúsViera, 655 F.3d 52, 57 (1st Cir. 2011), cert. denied, 132 S. Ct. 

1045 (2012); Sch. Union No. 37 v. United Nat’l Ins. Co., 617 

F.3d 554, 564 (1st Cir. 2010) (only issues fairly raised by

 

2This court declines to address whether the factual 

allegations set forth in Hazelton’s motion might state 

independently actionable claims of violations of his federal 

rights under 42 U.S.C. § 1983, as that issue is not before the

court in this case.

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objections to magistrate judge’s report are subject to review by 

district court; issues not preserved by such objection are 

precluded on appeal).

__________________________

Landya McCafferty 

United States Magistrate Judge 

April 10, 2013 

cc: Timothy W. Hazelton, pro se

Brian W. Buonamano, Esq.

Danielle Leah Pacik, Esq.

Michael J. Sheehan, Esq.

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