Pabon v. Cheshire County Department of Corrections, Superintendent

Filing 56

ORDER: Plaintiff must respond as outlined within on or before August 1, 2016. Defendants Motion to Dismiss (doc. no. 50) is taken under advisement, pending plaintiffs response to this Order, or the expiration of the time allotted for that response. So Ordered by Judge Landya B. McCafferty.(de)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Roberto Pabon
v.

Civil No. 15-cv-115-LM
Opinion No. 2016 DNH 114

Cheshire County Department of
Corrections Superintendent
Richard N. Van Wickler and
Cheshire County

O R D E R
Plaintiff Roberto Pabon filed suit against Cheshire County,
and Richard N. Van Wickler, the Cheshire County Department of
Corrections (“CCDC”) Superintendent.

In this action, Pabon has

asserted claims for infringement of his federal constitutional
rights and his rights under the Religious Land Use and
Institutionalized Persons Act in January 2015, when Pabon was a
federal pretrial detainee housed at the CCDC.

Before the court

is defendants’ motion to dismiss (doc. no. 50), asserting that
Pabon has failed to prosecute this action and failed to keep the
court apprised of his current address.
Background
On May 9, 2016, a status hearing was held in this matter
before the Magistrate Judge.

Defendants appeared with counsel.

Pabon, who is proceeding pro se in this matter, appeared
telephonically from the Metropolitan Detention Center (“MDC”) in
Brooklyn, New York.

At the May 9 hearing, the parties discussed

a potential settlement of this matter.

After the hearing, the

Magistrate Judge issued an Order (doc. no. 44) directing that a
follow-up status conference be scheduled for May 16, or as soon
as practicable thereafter, as Pabon had stated at the May 9
hearing that he expected to be sentenced in federal court in
Vermont on May 19, 2016, and did not know where he would be
incarcerated on May 16, 2016.
In a letter dated May 13, 2016 (doc. no. 45), Pabon
notified the court that he had been transferred from the MDC to
the Strafford County Department of Corrections (“SCDC”).

The

court then learned that Pabon was to be transferred to
Brattleboro, Vermont, for his May 19, 2016, sentencing.

Prior

to his sentencing, the court, and apparently the parties,
expected Pabon to remain in the custody of the Bureau of Prisons
after his sentencing, and to be transferred to a federal
facility, to serve the balance of his sentence, on either May 20
or May 27, 2016.
On May 19, 2016, the court received Pabon’s response (doc.
no. 46) to defendants’ previously-filed motion for summary
judgment.

Pabon has not contacted the court since filing that

response.

Mail sent to Pabon in May 2016, both at the MDC and
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at the SCDC, has been returned to the court.

See Doc. Nos. 47,

48, 51, and 52.
On June 14, 2016, defendants filed “Defense’s Report of
Counsel” (doc. no. 49) advising the court that defendants’
counsel had called the SCDC on that date, and was told that
Pabon had been released from that facility on May 25, 2016.
Defendants then filed the instant motion to dismiss (doc. no.
50), on the basis that Pabon has failed to prosecute this case,
and failed to apprise the court of his current mailing address,
as required by LR 83.6(e).

Defendants did not serve Pabon with

a copy of the motion to dismiss.1

Pabon has not responded to the

motion.
A final pretrial conference in this case was scheduled for
July 5, 2016.

The only notice Pabon received of that conference

was the Trial Notice mailed to Pabon on June 12, 2015, more than
a year prior to the scheduled hearing.
the final pretrial conference.

Pabon did not appear for

At the conference, the court

continued trial until September 20, 2016.

1Defense

counsel included the following “Certificate of NonService” in his motion to dismiss: “I hereby certify that a copy
of this filing WILL NOT be provided to Mr. Pabon, pro se, at his
address of record, on file with the court clerk, – due to his
failure to abide by court rules and provide the court his
current address – but that electronic copy will be forwarded to
my clients.”
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The clerk’s office has now located what is believed to be
Pabon’s mother’s address: 57 Cromwell St., Harford, CT, 06114.
The court will forward a copy of this Order, along with a copy
of the docket sheet in this matter, to that address.
Defendants’ counsel has filed “Defendants’ Addendum to Court
Documents #49, 50, 53 & 54: Confirmation of Certificate of
Service on Plaintiff” (doc. no. 55), notifying the court that he
has sent a letter to plaintiff at the Hartford address, advising
Pabon of the status of the case, and the need for Pabon to
notify the court and defense counsel as to whether he intends to
continue to litigate this matter.

Counsel also sent Pabon

copies of the defendants’ filings in this case that Pabon did
not receive due to his release from custody and failure to
notify the court of his new address.
Discussion
“A district court, as part of its inherent power to manage
its own docket, may dismiss a case for any of the reasons
prescribed in Federal Rule of Civil Procedure Rule 41(b).”
Torres-Álamo v. Puerto Rico, 502 F.3d 20, 25 (1st Cir. 2007).
Rule 41(b) permits a defendant to move to dismiss an action or
claim against it, “[i]f the plaintiff fails to prosecute or to
comply with these rules or a court order.”
41(b).

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Fed. R. Civ. P.

“The court, mindful of ‘the strong presumption in favor of
deciding cases on the merits,’ considers the totality of the
circumstances in determining whether dismissal is appropriate.”
Palermo v. Gerry, No. 13-CV-232-PB, 2015 U.S. Dist. LEXIS 94741,
at *1-*2, 2015 WL 4464491, at *1 (D.N.H. June 24, 2015) (quoting
García–Pérez v. Hosp. Metropolitano, 597 F.3d 6, 7 (1st Cir.
2010)), R&R approved sub nom. Palermo v. N.H. State Prison, No.
13-cv-232-PB, 2015 U.S. Dist. LEXIS 94740, 2015 WL 4464491
(D.N.H. July 21, 2015).

Relevant factors include plaintiff’s

previous diligence in prosecution, notice to plaintiff of
potential for dismissal, and the severity of plaintiff’s
misconduct, as well as “procedural elements, such as notice and
the opportunity to be heard.”

Torres-Álamo, 502 F.3d at 25; see

also Diaz-Santos v. Dep’t of Educ., 108 F. App’x 638, 640 (1st
Cir. 2004).

“Because of the strong policy favoring the

disposition of cases on the merits,” the “drastic” sanction of
dismissal for want of prosecution should be reserved for
particularly egregious circumstances.

Colokathis v. Wentworth-

Douglass Hosp., 693 F.2d 7, 9 (1st Cir. 1982) (internal
citations and quotation marks omitted); see also Benitez-Garcia
v. Gonzalez-Vega, 468 F.3d 1, 4 (1st Cir. 2006).
Here, Pabon diligently prosecuted this matter until his
release from custody at the end of May, including providing
notification to the court of a change of address earlier that
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month.
months.

Pabon has been “absent” from this case for less than two
Although Pabon failed to appear at the July 5 pretrial

conference, it appears the only notice Pabon has had of that
hearing was sent to him in June 2015, while he was in federal
custody.

There is no indication that Pabon received actual

notice of defendants’ motion to dismiss.
At this time, the court cannot find that Pabon’s absence
from this case is sufficiently egregious or prejudicial to the
defendants to warrant dismissal of the case.

While it is true

that Pabon has failed to notify the court of his change in
address, and, due to this absence at the final pretrial
conference, the trial in this matter was continued for
approximately two months, defendants have not shown that they
suffered any prejudice due to this brief delay.

Given the

totality of the circumstances present here, the court cannot
find at this time that Pabon has either abandoned his case, or
engaged in the sort of repetitive disobedience of court orders
or other misconduct as would warrant dismissal of this matter.
Accordingly, the court takes defendants’ motion to dismiss (doc.
no. 50) under advisement, and directs Pabon to either notify the
court that he intends to proceed with this matter, or request
that the court dismiss this matter without prejudice.

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Conclusion
The court directs as follows:
1.

Plaintiff must, on or before August 1, 2016:
a.
File a notice in the court stating that he
intends to proceed with this action; or
b.
File a motion seeking voluntary dismissal of this
matter without prejudice.

2. Going forward, plaintiff must advise the court
promptly of any change in his mailing address, in
compliance with LR 83.6(e).
3. Defendants’ Motion to Dismiss (doc. no. 50) is taken
under advisement, pending plaintiff’s response to this
Order, or the expiration of the time allotted for that
response.
If plaintiff fails to respond to this Order, the court may
dismiss this action, pursuant to Fed. R. Civ. P. 41(b), without
further hearing.
SO ORDERED.

______________________________
Landya B. McCafferty
United States District Judge
July 13, 2016
cc:

Roberto Pabon, pro se
John A. Curran, Esq.

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