Levesque v. State of New Hampshire, et al

Filing 96

ORDER denying 95 Motion to Dismiss. Plaintiff must comply with this order as outlined within 45 days. Plaintiff's failure to comply with all future deadlines and orders, as well as the procedural obligations inherent in prosecuting this case, may result in dismissal of the lawsuit. The Preliminary Pretrial Conference, currently set for July 13, 2011, at 10:00 a.m., will be continued. So Ordered by Judge Joseph N. Laplante. (cmp)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Andre R. Levesque
v.

Civil No. 09-cv-437-JL

State of New Hampshire et al.
O R D E R
Defendants1 have filed “Joint Defendants’ Motion with
Incorporated Memorandum of Law in Support of Motion to Dismiss
for Failure to Prosecute” (doc. no. 95).

Defendants allege that

because plaintiff has failed to keep the court or defendants
apprised of his current address, he has thus failed to prosecute
this case, such that dismissal is warranted.

I.

BACKGROUND2
Levesque was committed to the custody of the New Hampshire

Hospital (“NHH”) by a civil commitment order issued by the state

1

Defendants’ motion states that the filing is by
“[d]efendants jointly, through counsel for the Secure Psychiatric
Unit of the New Hampshire Department of Corrections (hereinafter
“SPU”) and Kevin Stevenson, (jointly State Defendants)
represented by the Office of the Attorney General.” The court
understands this to mean that the motion is filed on behalf of
all of the defendants to this action, not just the State
Defendants.
2

The facts in this Order are gleaned from defendants’
instant motion as well as facts appearing elsewhere in the
record.

probate court in March 2010.

In November or December 2010,

Levesque absconded from the NHH for approximately one month.
On January 31, 2011, Levesque notified the court that his
then-current address was again at the NHH.

Court mail sent to

Levesque addressed to the NHH on March 24, 2011, was returned to
the court as undeliverable.

The defendants assert that to their

knowledge, Levesque is not presently at the NHH.
Levesque was charged criminally with escape and pleaded
guilty to that charge on April 6, 2011.

It does not appear that

the negotiated plea agreement entered in that case included any
period of incarceration to serve after the plea was entered.
Defendants have indicated that they obtained two possible
Manchester, New Hampshire, addresses for Levesque:

one from the

NHH on Bridge Street that Levesque had provided as his discharge
address; and one from the Merrimack County Attorney’s Office on
Amherst Street that that office believed to have been valid at
the time of Levesque’s April 6, 2011, guilty plea.

Defendants

have tried to contact Levesque by mail at each of those addresses
but in both instances the mail was returned as undeliverable.
Levesque is under the guardianship of Paul Chudzicki, a
court-appointed guardian from the New Hampshire Office of the
Public Guardian.

Chudzicki has advised counsel for the State

Defendants that Levesque’s whereabouts are unknown, but the
2

Manchester Police Department has an “all points bulletin” out for
him.

Chudzicki has a working cell phone number for Levesque.

Counsel for the State defendants has asked Chudzicki to try to
call Levesque and apprise him of the July 13, 2011, preliminary
pretrial conference that has been scheduled in this matter.
There is no information presently in the record as to whether
Chudzicki has been able to make contact with Levesque.

II.

DISCUSSION
Pursuant to Fed. R. Civ. P. 41(b),“[i]f the plaintiff fails

to prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against it.
Unless the dismissal orders states otherwise, a dismissal under
this subdivision . . . operates as an adjudication on the
merits.”

Accordingly, the court has the general authority to

dismiss a lawsuit if it finds that plaintiff’s actions, or the
lack thereof, warrant such a sanction.

See Diaz-Santos v. Dep’t

of Educ., 108 F. App’x 638, 640 (1st Cir. 2004).

In Diaz-Santos,

the court, evaluating the totality of circumstances in that case,
focused particularly on the following factors in determining
whether to dismiss the case:

(1) whether plaintiff prosecuted

the claims diligently prior to her apparent abandonment of the
lawsuit; (2) whether the court fairly warned plaintiff of its
3

inclination to dismiss absent diligent prosecution; and (3)
whether the ramifications of the plaintiff’s failure to prosecute
“constituted misconduct ‘sufficiently extreme to
justify dismissal with prejudice.’”

Id. (quoting Pomales v.

Celulares Telefonica, Inc., 342 F.3d 44, 49 (1st Cir. 2003)).
While Rule 41(b) grants significant discretion to the court
to determine when dismissal for want of prosecution is
appropriate, the First Circuit has warned that “[b]ecause of the
strong policy favoring the disposition of cases on the merits,”
the “drastic” remedy of dismissal should be reserved for
particularly egregious circumstances.

Colokathis v. Wentworth-

Douglass Hosp., 693 F.2d 7, 9 (1st Cir. 1982); see also Pomales,
342 F.3d at 48 (“the sanction of dismissal with prejudice for
want of prosecution is a unique and awesome one . . . appropriate
in the face of extremely protracted inaction (measured in years),
disobedience of court orders, ignorance of warnings, contumacious
conduct, or some other aggravating circumstance” (internal
citation and quotation marks omitted)); Bachier-Ortiz v. ColonMendoza, 331 F.3d 193, 196 (1st Cir. 2003) (“In general, the
sanction of dismissal for lack of prosecution is appropriate only
when plaintiff’s misconduct is serious, repeated, contumacious,
extreme, or otherwise inexcusable.”).

4

Defendants here allege that Levesque’s present failure to
notify the court of his address warrants dismissal of this
action.

Defendants cite to United States District Court District

of New Hampshire Local Rule 83.6(e), which requires parties to
actions in this court to notify the Clerk’s Office of any change
in address or telephone number.
In a case in which defendants moved to dismiss a pro se
plaintiff’s case for failure to prosecute based on plaintiff’s
failure to notify the court of a change of address after he was
released from custody, another court in this circuit has ruled
that “[a]lthough [the court’s local rule] requires pro se
litigants to notify the Clerk of any change of address, and
[plaintff] is in violation of this rule, a dismissal for failure
to prosecute is not warranted where [plaintiff] has not yet
failed to meet any other obligation to the court.”

Sparks v.

Dennehy, No. 08-11437-PBS, 2009 WL 6490086, *5 (D. Mass. Nov. 16,
2009) (citing Bachier-Ortiz, 331 F.3d at 195).

Defendants do not

allege that Levesque has missed any court hearings or failed to
meet other case-related obligations at this time, except that he
failed to approve or disapprove defendants’ proposed scheduling
order, as he has not received it, due to his failure to supply
the court with a current address.

5

Defendants point to the court’s ruling in Dullen v. Grafton
Cnty. Dep’t of Corrs., No. Civ. 02-547-M, 2004 WL 102494, *1
(D.N.H. 2004), in support of their assertion that Levesque’s
present failure to notify the court of his change of address
evinces an apparent intention to abandon.

In Dullen, however,

the court noted that plaintiff apparently had, in addition to
failing to provide an address, repeatedly initiated and then
abandoned federal civil rights actions in the past and had
previously had a case he brought in another district dismissed
for failing to respond to an order to amend.

Further, the court

found that plaintiff’s failure to comply with discovery requests
with which he had been served while in custody had prejudiced
defendants’ efforts to conduct proper discovery and forced the
proceeding “to come to a halt.”

Id. at *1-2.

This case is distinguishable on its facts.

Prior to

Levesque’s recent departure to parts unknown, he was, for over a
year, sufficiently involved in the prosecution of this action to
warrant a finding that he was interested in seeing the suit
through.

His filings and attention to this case were so

prolific, in fact, as to engender a request from defendants for

6

the court to enjoin certain filings by Levesque.3

See Motion for

Protective Order filed July 13, 2010 (doc. no. 56).
Levesque continued to file motions in the case until January
13, 2011, when he filed a motion for court-appointed counsel
(doc. no. 92).

On February 3, 2011, Levesque filed a written

notice of a change of address (doc. no 93), and he has not filed
anything else since that date.

On March 24, 2011, the court

mailed to Levesque notice that his motion for counsel had been
denied.

The mail was returned to the court as undeliverable.

While several months have passed since mail sent to Levesque was
first returned, the case has not yet suffered any resulting
delay, much less a delay “measured in years,” see Pomales, 342
F.3d at 48, to warrant a finding that the case should be
dismissed.
Defendants assert that to require them to continue to defend
this case at this time will prejudice them by forcing them to
expend scarce resources on a case that may not be pursued by
plaintiff.

Defendants have attempted to contact Levesque to seek

assent to their proposed scheduling order, but have been unable

3

The court declined to enjoin Levesque’s filings but
relieved defendants of the obligation to reply to those filings
unless specifically directed to do so by the court. See Order
granting in part and denying in part Motion for Protective Order
issued Sept. 8, 2010 (doc. no. 80).
7

to do so.

Defendants now assert that if the court enters that

scheduling order “defense counsel will be faced with the need to
pursue further time consuming [sic] pointless activity,” in
sending discovery, filing motions to compel, and filing other
motions that are not likely to be received or answered by
Levesque, resulting in a waste of public resources.
Levesque’s failure to provide this court with a correct
address since February 2011 does give rise to concern regarding
Levesque’s interest in diligently prosecuting this action now
that he has been released from criminal custody and been granted
a conditional discharge from his civil commitment to NHH.
Further, while the defendants have not at this time demonstrated
any prejudice already suffered as a result of Levesque’s present
decampment, the court is cognizant of the defendants’ interest in
avoiding the expenditure of time and resources if, in fact,
Levesque does not intend to continue to pursue relief in this
court.
Finally, the court considers whether Levesque has been
sufficiently notified of the risk of dismissal for his failure to
provide a current address to the court that Levesque’s continued
failure to do so could express indifference to whether or not
this case proceeds.

The court now finds that, to date, Levesque

has not been specifically notified that his failure to continue
8

to prosecute this action diligently, and to keep the court
apprised of a current address, would result in a dismissal on the
merits under Fed. R. Civ. P. 41(b).
Considering these factors, the court finds that dismissal at
this time is premature.

Levesque has pursued this matter for

most of its pendency, and has not failed to appear or failed to
meet other procedural obligations.

No delay has been caused by

his failure to provide an address, and the case, at this time,
does not bespeak behavior by plaintiff so drastic or egregious as
to warrant dismissal under Rule 41(b).

III. CONCLUSION
For the reasons stated above, the Joint Defendants’ Motion
with Incorporated Memorandum of Law in Support of Motion to
Dismiss for Failure to Prosecute (doc. no. 95) is DENIED.

The

denial of the motion is without prejudice to the renewal of the
request to dismiss for lack of prosecution should Levesque fail
to comply with the following additional terms of this Order:
1.

Plaintiff is directed to, within forty-five days of the

date of this Order:
a.

Notify the court in writing as to whether he

intends to continue to prosecute this case; and

9

b.

Provide this court with a valid address at which

he can receive correspondence from the court and defendants; and
c.

Either notify defendants’ counsel of his consent

to defendants’ Rule 26 discovery plan, or provide a counter
proposal to that plan.
2.

Levesque is advised that his failure to comply with any

aspect of this Order, or failure to comply with all future
deadlines and orders, as well as the procedural obligations
inherent in prosecuting this case, may result in dismissal of the
lawsuit.
3.

See Fed. R. Civ. P. 41(b).
The Preliminary Pretrial Conference, currently set for

July 13, 2011, at 10:00 a.m., will be continued.

The hearing

will be rescheduled upon plaintiff’s compliance with the terms of
this Order;
4.

The Clerk’s Office is directed to send a copy of this

Order to Levesque at the following addresses:
a.

# 07455
New Hampshire Hospital
APS Bldg. Unit D
36 Clinton St.
Concord, NH 03301

b.

# 07455
New Hampshire State Prison
Secure Psychiatric Unit
P.O. Box 2828
Concord, NH 03302

10

c.

195 Bridge St., #7
Manchester, NH 03101

d.

326 Amherst St.
Manchester, NH 03101

e.

c/o Paul Chudzicki
Office of the Public Guardian
2 Pillsbury St., Ste. 400
Concord, NH 03301

f.

P.O. Box 24
Ellenburg Center, NY 129344

The Clerk’s Office is further directed to forward this Order to
any address of which it becomes aware that reasonably appears to
be a valid address for Levesque.
5.

Defendants are directed to provide the Clerk’s Office

with any address for Levesque that reasonably appears to be
valid, not already listed above.

SO ORDERED.

____________________________
Joseph N. Laplante
United States District Judge
Dated:

June

30, 2011

4

In his pleadings in this case, Levesque has repeatedly
listed a post office box in Ellenburg Center, NY as his mailing
address. Levesque owns 96 acres of property in that town upon
which, he has stated in various pleadings in this case, is a
residence where he intended to live after he was released from
custody.
11

cc:

Andre Levesque, pro se
Corey M. Belobrow, Esq.
Martin P. Honigberg, Esq.
Rose Marie Joly, Esq.
Michael A. Pignatelli, Esq.
Nancy J. Smith, Esq.

12