Allen v. Baker et al

Filing 56

ORDER Adopting 55 Report and Recommendation; denying as moot 51 Motion to Dismiss for Failure to State a Claim. The court hereby notifies Mr. Allen that it will dismiss the action against the remaining defendants under Fed. R. Civ. P. 4(m) unless he shows good cause by March 28, 2025, for extending the time for service. Signed by District Judge Geoffrey W. Crawford on 3/10/2025. (sjl)

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,!_::, J:S lRIC l COURT
JJS rnicr OF VERMONT

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
DAVID ALLEN,

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Plaintiff,
V.

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VERMONT DEPARTMENT OF
CORRECTIONS, VITALCORE, STEPHEN
RIENDEAU, CHARLES PAVLOVIC, JODI
GAVIN, STEPHANIE KINDRED, and
JOHN AND JANE DOES,
Defendants.

FILED

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BY
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Case No. 5:21-cv-280

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ORDER
(Docs. 51, 55)
Plaintiff David Allen, representing himself, has filed this lawsuit under 42 U.S.C. § 1983,
alleging that multiple Vermont Department of Corrections (DOC) personnel and DOC health
services contractors provided inadequate medical care and failed to properly manage his Type 1
diabetes during his incarceration at the Southern State Correctional Facility (SSCF); he also
alleges that they retaliated against him for his complaints. (See Doc. 28.) In a prior Order, the
court dismissed Mr. Allen's claims against former DOC Commissioner James Baker, current
DOC Commissioner Nicholas Deml, and DOC Director of Health Services Max Titus.
(Doc. 41.) The court also dismissed Mr. Allen's claims against the DOC itself to the extent those
claims sought money damages. (Id. at 8.) Noting that the remaining defendants had not been
served with process, the court extended Mr. Allen's time to complete service. (Id.)
After the court granted Mr. Allen's motion for court-ordered service (see Doc. 46), the
U.S. Marshals Service served the summons and complaint on VitalCore, the corporate DOC

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health service contractor. (Doc. 49.) 1 Mr. Allen indicated that he had no way oflocating the
remaining individual defendants. (See Doc. 47.) To date, none of those remaining defendants
have been served.
Currently pending is VitalCore's motion to dismiss under Fed. R. Civ. P. 12(b)(6).
(Doc. 51.) In an Order dated November 22, 2024, the court directed Mr. Allen to respond to
VitalCore's motion, or show cause why no response is required, by December 23, 2024.
(Doc. 54.) The November 2024 Order cautioned that failure to respond could result in dismissal
under Fed. R. Civ. P. 41(b). The docket reflects no response from Mr. Allen. 'fhe Magistrate
Judge issued a Report and Recommendation ("R&R") on February 13, 2025, recommending
dismissal of Plaintiff's claims against Vital Core without prejudice under Fed. R. Civ. P. 41(b)
and denial ofVitalCore's motion as moot. (Doc. 55.) Mr. Allen has not filed any objection.
After careful review of the file and the Magistrate Judge's Report and Recommendation,
the R&R is AFFIRMED, APPROVED, and ADOPTED. See 28 U.S.C. § 636(b)(l). The court
agrees with the R&R's findings and conclusions regarding the factors relevant to involuntary
dismissal under Rule 41(b). See Lucas v. Miles, 84 F.3d 532,535 (2d Cir. 1996) (listing factors).
Mr. Allen's failure to file any opposition to VitalCore's motion does not by itself establish that
the complaint lacks any plausible claims against VitalCore. See McCall v. Pataki, 232 F.3d 321,
322-23 (2d Cir. 2000) ("[T]he sufficiency of a complaint is a matter oflaw that the court is
capable of determining based on its own reading of the pleading and knowledge of the law.").

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The Amended Complaint identifies the corporate vendor only as "Vital Core." The
vendor's full name appears to be VitalCore Health Strategies, LLC. See Vt. Agency of Hum.
Servs., Dep't of Corr., Vermont DOC Announces Health Services Contract with Wellpath, LLC,
https://doc.vermont.gov/press-release/vermont-doc-announces-health-services-contract-wellpathllc [https://perma.cc/Z46W-8CQP]. The court refers to the corporate defendant as "VitalCore."
VitalCore's contract with the DOC concluded in June 2023. See id (noting that Wellpath,
LLC's contract began on July 1, 2023).
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But he failed to respond by the December 23, 2024 deadline stated in the court's November 2024
Order. That Order also put Mr. Allen on notice that failure to comply could result in dismissal.
This case was filed in 2021, and further delay is likely prejudicial to VitalCore. Mr. Allen has
received multiple opportunities to be heard, but he has failed to take advantage of those
opportunities, and his failure to communicate with the court for more than six months weighs in
favor of dismissal. Mr. Allen's failure to respond for this long period of time indicates that there
is no less drastic sanction that would be effective.
For these reasons, the court agrees with the R&R that Mr. Allen's claims against
VitalCore should be DISMISSED without prejudice under Rule 4l(b). As recommended in the
R&R, the court therefore also DENIES VitalCore's Rule 12(b)(6) motion as moot.
The R&R does not address any of Mr. Allen's claims against the remaining defendants,
none of whom have been served. Although the court granted Mr. Allen's motion for courtordered service (see Doc. 46), Mr. Allen has indicated that he has no way of locating the other
defendants (see Doc. 47). The court recognizes its obligation "to assist a pro se plaintiff in
identifying a defendant." Valentin v. Dinkins, 121 F.3d 72, 75 (2d Cir. 1997) (per curiam). But
Mr. Allen's lack of communication with the court for an extended period suggests that
attempting any such assistance would be futile. The court hereby notifies Mr. Allen that it will
dismiss the action against the remaining defendants under Fed. R. Civ. P. 4(m) unless he shows
good cause by March 28, 2025, for extending the time for service.
SO ORDERED.
Dated at Burlington, in the District of Vermont, this 10th day of March, 2025.

Isl Geoffrey W. Crawford
District Judge
United States District Court
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