Roy et al v. NH Department of Corrections, Commissioner et al

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)).
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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
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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
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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.
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