United States District Court, D. New Hampshire
B. McCafferty United States District Judge
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.
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.
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.
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 at the SCDC, has been returned to the court. See
Doc. Nos. 47, 48, 51, and
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. Pabon has not responded to the motion.
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. Pabon did not appear
for the final pretrial conference. At the conference, the
court continued trial until September 20, 2016.
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.
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." Fed. R. Civ. P.
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).
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
month. Pabon has been "absent" from this case for
less than two months. 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.
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' ...