Dullen v. Grafton County DOC, et al.

2004 DNH 021

• Court: District Court, D. New Hampshire
• Decided: January 22, 2004
• Docket: CV-02-547-M
• Status: Published

Opinion

Dullen v . Grafton County DOC, et a l . CV-02-547-M 01/22/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Patrick E . Dullen, Plaintiff

v. Civil N o . 02-547-M Opinion N o . 2004 DNH 021 Grafton County Department of Corrections, et a l . , Defendants

O R D E R

In November of 2002, while incarcerated at the Grafton

County Department of Corrections (“DOC”), pro se plaintiff,

Patrick Dullen, filed this civil rights action. He alleges that,

during the course of his incarceration at DOC, defendants denied

him adequate medical care, prohibited him from practicing his

religion, subjected him to unsafe and unhealthy conditions of

confinement, and threatened disciplinary action in reprisal for

his having filed grievances against them.

After reviewing Dullen’s complaint for subject matter

jurisdiction, the Magistrate Judge recommended that the court

dismiss many of Dullen’s claims, but that it allow him to proceed

on his Eighth Amendment claim premised on the denial of adequate medical care, as well as his First Amendment retaliation claim.

The court accepted and adopted the Magistrate Judge’s report and

recommendation. Dullen then moved for summary judgment. In

response, defendants moved for additional time within which to

take discovery. The court granted that motion and afforded

defendants until November 1 , 2003, to take discovery and respond

to Dullen’s motion for summary judgment.

In April of 2003, Dullen advised the court that he had been

transferred to the Onondaga County Justice Center, in Syracuse,

New York. Subsequently, defendants served him (at the Onondaga

County Justice Center) with discovery requests, which were

seemingly delivered without problem - at least they were not

returned to defendants’ counsel as undeliverable. Nevertheless,

Dullen did not respond. Subsequent efforts to serve Dullen

(with, for example, defendants’ motion to compel production of

discovery) were unsuccessful and defendants’ mailings were

returned as undeliverable - it seems that Dullen had again been

transferred, this time to the Hillsborough County House of

Correction (“HCHC”) and, soon thereafter, he was released from

custody. See, e.g., Report and Recommendation (document n o . 51)

2 at 1 (noting that Dullen had been released from the Hillsborough

County House of Correction on bail). Defendants’ efforts to

serve Dullen at HCHC proved fruitless and one can only infer that

he had already been released from custody when the documents

arrived at the facility.

Notwithstanding his transfer from New York back to New

Hampshire and his subsequent release from custody, Dullen never

notified the court of either of those changes in his mailing

address. See Local Rule 83.6(e) (“An attorney or pro se party

who has appeared before the court on a matter is under a

continuing duty to notify the clerk’s office of any change of

address and telephone number.”). Given Dullen’s pro se status,

however, the Magistrate Judge instructed defense counsel to serve

Dullen with the filings in question at his last known home

address, in Manchester, New Hampshire. Those efforts, too, were

unsuccessful and Dullen has yet to provide defendants with the

requested discovery, nor has he responded to their motion to

compel.

3 Having received none of the discovery they sought from

Dullen and having been unable to serve him with their motion to

compel at either of the addresses he has provided to the court

and counsel (or even at his last known home address), defendants

now move to dismiss Dullen’s complaint for failure to prosecute.

See Fed. R. Civ. P. 41(b). Defendants also point out that “the

initiation and abandonment of federal civil rights litigation

appears to be a recurrent activity for this Plaintiff.” Motion

to dismiss at para. 1 3 . On September 2 , 2003, the United States

District Court for the Northern District of New York dismissed a

civil rights action initiated by Dullen against the Onondaga

County Sheriff’s Department for failing to respond to the court’s

order to file an amended complaint.

In this case, by failing to notify the court (or defense

counsel) of his current mailing address, Dullen has violated his

continuing obligation to keep the court apprised of any changes

in his address. More importantly, however, that failure (along

with his failure to honor the discovery requests that were,

seemingly, properly served upon h i m ) , has prejudiced defendants’

efforts to conduct discovery to which they are entitled. It has

4 also forced this proceeding to come to a halt. In light of

Dullen’s conduct to date, the court can only conclude that,

having been released from custody, he no longer has any interest

in pursuing the few claims that remain of his original complaint.

Conclusion

For the reasons set forth above, and for those set forth in

defendants’ memoranda, defendants’ motion to dismiss (document

n o . 54) is granted and plaintiff’s complaint is dismissed. See

Fed. R. Civ. P. 41(b). All other pending motions are denied as

moot. The Clerk of Court shall enter judgment in accordance with

this order and close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

January 2 2 , 2004

cc: Gregory G. Peters, Esq. Donald E . Gardner, Esq. Patrick E . Dullen