Walden v. Nashua, N H , et al.

2007 DNH 050

• Court: District Court, D. New Hampshire
• Decided: April 13, 2007
• Docket: 05-CV-455-SM
• Status: Published

Opinion

Walden v . Nashua, N H , et a l . 05-CV-455-SM 04/13/07 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Peter Walden, Plaintiff

v. Civil N o . 05-cv-455-SM Opinion N o . 2007 DNH 050 City of Nashua; Donald Gross; Eric Nordengren; Joshua Albert; Michael Dore; Todd Moriarty; and John and Jane Doe, Defendants

O R D E R

Peter Walden brought this suit against the City of Nashua,

Nashua police chief Donald Gross, Nashua police detective Eric

Nordengren, and Nashua police officers Joshua Albert, Michael

Dore, Todd Moriarty, and John and Jane Doe, alleging violations

of his federal civil rights as well as related state claims. See

generally 42 U.S.C. § 1983. Defendants move to dismiss all

claims against them, asserting that Walden has failed to provide

answers to interrogatories and has failed to comply with the

court’s order compelling him to provide such answers. Walden has

not responded to the motion to dismiss.

Applicable Law

The court has discretion to impose sanctions for failure to

comply with discovery orders, including dismissal of the underlying action. See F E D . R . C I V . P . 37(b); Malot v . Dorado

Beach Cottages Assocs. S . En C . Por A . , S . E . , 2007 U . S . App.

LEXIS 3945, *7 (1st Cir. Feb. 2 3 , 2007). Generally, “a case

should not be dismissed with prejudice except ‘when a plaintiff’s

misconduct is particularly egregious or extreme.’” Benitez-

Garcia v . Gonzalez-Vega, 468 F.3d 1 , 5 (1st Cir. 2006) (quoting

Benjamin v . Aroostook Med. Ctr., Inc., 57 F.3d 1 0 1 , 107 (1st Cir.

1995)).

The Court of Appeals has provided a non-exhaustive list of

substantive factors that ought to be considered before imposing

sanctions, including “‘the severity of the violation, the

legitimacy of the party’s excuse, repetition of violations, the

deliberateness vel non of the misconduct, mitigating excuses,

prejudice to the other side and to the operations of the court,

and the adequacy of lesser sanctions.’” Id. at *9 (quoting

Benitez-Garcia, 468 F.3d at 5 ) . The appellate court also noted

the importance of procedural considerations, such as the adequacy

of notice and the nonconforming party’s opportunity to be heard.

Id. (citing Benitez-Garcia, 468 F.3d at 5 ) .

Background

A review of the record reveals that interrogatories were

first presented to Walden on April 2 4 , 2006, through his

2 attorney. On June 9, 2006, Walden’s attorney notified opposing

counsel that he intended to withdraw from the case and that he

would forward the interrogatories to Walden that same day.1

Having received no answers to the interrogatories, on July

1 3 , 2006, defendants’ counsel contacted plaintiff by letter.

Walden did not respond. Defendants’ counsel mailed a second

letter to Walden, along with a duplicate copy of the

interrogatories, on August 1 0 , 2006, and again, Walden failed to

respond. Subsequently, on September 1 2 , 2006, defendants filed a

motion to compel Walden to answer the served interrogatories

within ten days (document n o . 18). 2 That motion was granted by

Magistrate Judge Muirhead on October 1 3 , 2006.

Despite the court’s order, Walden has still not provided

answers to defendants’ interrogatories, and, consequently, the

defendants move to dismiss the case.

1 Walden’s attorney formally withdrew from the case on July 1 0 , 2006 (document n o . 1 6 ) , and Walden contemporaneously entered his pro se appearance (document n o . 1 7 ) . 2 Local Rule 37.l(b) provides that “[w]hen the court rules on a discovery motion, the discovery requested or relief sought shall be provided within ten (10) days of the court order, unless the order specifies a different time.”

3 Discussion

The record reveals that Walden has had ample opportunity to

comply with the defendants’ discovery requests and the court’s

subsequent order compelling him to do s o . Despite having had the

interrogatories since, at the latest, August 1 0 , 2006, Walden has

neither provided answers nor raised any objection. Moreover,

Walden has proffered no explanation or excuse for his non-

responsiveness, and has even failed to respond to defendants’

motion to dismiss. Indeed, there has been no communication from

Walden concerning this case since he entered his pro se

appearance on July 1 0 , 2006.3

Dismissal with prejudice is a uniquely harsh sanction for

noncompliance with a discovery order, and a single instance of

noncompliance does not generally warrant dismissal. See Malot,

2007 U.S. App. LEXIS 3945, *10 (1st Cir. Feb. 2 3 , 2007) ( “ . . .

3 The court recognizes that during the pendency of this case, Walden, a state inmate, was moved from the New Hampshire State Prison in Concord to the Northern New Hampshire Correctional Facility in Berlin, where he now apparently resides. Although his relocation might have delayed Walden’s receipt of notices related to this case, and, thus, partially contributed to Walden’s failure to respond in a timely way, Local Rule 83.6(e) mandates that a 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. Counsel or pro se parties who fail to provide the clerk’s office with their current address . . . are not entitled to notice.” And, there does not appear to be any legitimate reason for Walden’s complete lack of communication.

4 we recently noted that we were unable to find a case in this

circuit in which we had upheld a dismissal with prejudice based

on a single instance of noncompliance with a discovery order”).

In this case, Walden has had numerous opportunities to comply

with defendants’ reasonable discovery requests, as well as the

magistrate’s order compelling compliance, but he has,

nevertheless, failed or refused to do s o .

Walden’s disregard for the discovery process and the orders

of this court, along with his lack of objection to the

defendants’ motion to dismiss, and general failure to prosecute

this case, taken together, demonstrate that he is no longer

interested in pursuing his claims against the defendants.

Accordingly, dismissal is an appropriate and justifiable

sanction.

Conclusion

For the foregoing reasons, defendants’ motion to dismiss

(document n o . 19) is granted, and plaintiff’s claims are

dismissed with prejudice. The clerk of court shall enter

judgment accordingly and close the case. A copy of this order

shall be mailed to plaintiff at his current address at the

Northern New Hampshire Correctional Facility in Berlin, New

Hampshire.

5 SO ORDERED.

Steven J. McAuliffe Chief Judge

April 1 3 , 2007

cc: Peter Walden, pro se Donald E . Gardner, Esq. Brian J. S . Cullen, Esq.