1:18-cv-00817•Roy et al v. NH Department of Corrections, Commissioner et al
Roy et al v. NH Department of Corrections, Commissioner et al
1:18-cv-00817NhdJan 23, 2020
Full text
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE Steven J. Roy v. Case No. 18-cv-817-JL New Hampshire Department of Corrections Commissioner Helen Hanks; Director of Medical and Forensic Services Paula Mattis; Bernadette Campbell, Administrator, Medical and Forensic Services; Centurion of New Hampshire LLC; MHM Solutions, Inc.; Dr. Jose Aviles; Dr. Edward Dransite; Dr. FNU Anzel; Dr. Keith Batchelder; and Dr. Raj Pande1 REPORT AND RECOMMENDATION Before the court is the motion to dismiss (Doc. No. 47) filed by defendants New Hampshire Department of Corrections (“DOC”) Commissioner Helen Hanks and DOC Director of Medical and Forensic Services Paula Mattis. Those defendants have been served in this case only in their official capacities and have been directed to respond in that capacity to certain Eighth Amendment dental care claims seeking injunctive relief. In this Report and Recommendation (“R&R”), the court also addresses plaintiff’s failure to respond to the July 10, 2019 Order. 1The parties named in the complaint, other than those listed in the caption of this Order, have been dropped from the case. See May 9, 2019 Order (Doc. No. 25) (approving Apr. 24, 2019 R&R (Doc. No. 20)). Case 1:18-cv-00817-JL Document 50 Filed 01/23/20 Page 1 of 4
2 Motion to Dismiss (Doc. No. 47) The motion to dismiss (Doc. No. 47) seeks to vacate the court’s May 31, 2019 Order (Doc. No. 33) and to have official capacity defendants Commissioner Hanks and Director Mattis dropped as parties. Plaintiff, Steven J. Roy, has not objected. The May 31, 2019 Order (Doc. No. 33) directed that Commissioner Hanks and Director Mattis be served and joined as official capacity defendants in connection with plaintiff’s claims for injunctive relief. The court issued that Order after the New Hampshire Attorney General’s Office (“AG”) declined to accept service upon behalf of any official capacity defendant dentist on the injunctive relief claims. See generally Apr. 24, 2019 Order (Doc. No. 21) (directing that DOC dentists be served in their “official capacities”); Notices (Doc. Nos. 29, 30) (AG declined to accept service on behalf of any defendant, upon concluding that only Dr. Jose Aviles appeared to be eligible for such representation, but AG could not located him). Without expressing any view regarding the merits of any of the arguments asserted in support of the motion to dismiss (Doc. No. 47), the undersigned magistrate judge now recommends that the district judge issue an order dropping Commissioner Hanks and Director Mattis as defendants, in light of plaintiff’s failure to object to defendants’ motion. The motion to dismiss should thus be granted in part, to the extent that those Case 1:18-cv-00817-JL Document 50 Filed 01/23/20 Page 2 of 4
3 defendants are dropped from the case, without prejudice to plaintiff’s ability to move to amend the complaint and join any appropriate party as a defendant, showing the grounds for such proposed amendment and joinder, with respect to his official capacity claims for injunctive relief. Failure to Respond to July 10, 2019 Order In its July 10, 2019 Order, the court advised plaintiff either to provide the court with an address for serving Dr. Jose Aviles within ninety days, or to move for an extension of that time period, or the court would dismiss the claims pending against Dr. Aviles, without prejudice, pursuant to Fed. R. Civ. P. 4(m). Plaintiff did not respond to that Order. Accordingly, all claims pending against Dr. Aviles should be dismissed without prejudice, and Dr. Aviles should be dropped as a party. Conclusion For the foregoing reasons, the magistrate judge recommends as follows: 1. The district judge should grant the motion to dismiss (Doc. No. 47), in part, to the extent that official capacity defendants Commissioner Hanks and Director Mattis should be dropped from this case, without prejudice to plaintiff’s ability to move to amend the complaint and join Case 1:18-cv-00817-JL Document 50 Filed 01/23/20 Page 3 of 4
4 any appropriate party as a defendant, showing the grounds for such proposed amendment and joinder, with respect to his official capacity claims for injunctive relief. The remaining relief sought in that motion (Doc. No. 47) should be denied. 2. The district judge should direct that Dr. Jose Aviles be dropped as a defendant, and all claims asserted against him in this case should be dismissed without prejudice, for lack of timely service, pursuant to Fed. R. Civ. P. 4(m). Any objections to this Report and Recommendation must be filed within fourteen days of receipt of this notice. See Fed. R. Civ. P. 72(b)(2). The fourteen-day period may be extended upon motion. Failure to file objections within the specified time waives the right to appeal the district court’s order. See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016). __________________________ Andrea K. Johnstone United States Magistrate Judge January 23, 2020 cc: Steven J. Roy, pro se Anthony Galdieri, Esq. Jonathan A. Lax, Esq. Christina M. Wilson, Esq. Case 1:18-cv-00817-JL Document 50 Filed 01/23/20 Page 4 of 4
Wondering how this text applies to your situation?
Free consultation, no commitment
Describe your situation. Our team will contact you by email about your consultation.
Continue your research in ChatGPT or Claude
Connect Omnilex to search the legal corpus from your AI assistant.