Johnson v. Englander et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jacob William Johnson
v. Case No. 20-cv-398-SE-AJ
Dr. Celia Englander, et al.
REPORT AND RECOMMENDATION
In advance of an evidentiary hearing to determine whether
pro se plaintiff Jacob William Johnson exhausted available
administrative remedies on certain claims, the court scheduled
pre-hearing conferences for October 3, 2024, October 21, 2024,
and November 22, 2024. Mr. Johnson failed to appear at all
three conferences. He also failed to comply with the court’s
related October 22, 2024 order. Accordingly, for reasons
explained below, the court recommends that the district judge
dismiss Mr. Johnson’s case without prejudice pursuant to Federal
Rule of Civil Procedure 41(b).
Background
On September 17, 2024, the court issued an order, directing
the clerk’s office to schedule this matter for an evidentiary
hearing to determine whether Mr. Johnson exhausted available
administrative remedies on the following claims remaining in
this case: Claims 1(g)(iii)-(iv); Claims 1(h)(iii)-(iv); Claims
1(k)(i)-(iii); Claim 1(m); Claim 1(o); Claims 2(a)-(f); Claims
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4(a)-(b)(i); and Claim 6. See Order, Sept. 17, 2024, (Doc. No.
142). The court then scheduled a pre-hearing conference for
October 3, 2024, to set deadlines for pre-hearing filings and a
date for the evidentiary hearing. Mr. Johnson did not appear.
Given his prior participation in court proceedings and the fact
that he resides in Jacksonville, Florida, which appeared to be
an area affected by Hurricane Helene, the court rescheduled the
pre-hearing conference to October 21, 2024. Mr. Johnson did not
appear a second time.
On October 22, 2024, the court issued an order, directing
Mr. Johnson to provide updated contact information to the
clerk’s office to the extent his contact information was not
current. See Order, Oct. 22, 2024, (Doc. No. 143). The court
also informed Mr. Johnson that to the extent there were
extenuating circumstances preventing him from prosecuting his
case, he could seek a temporary stay, or to the extent he no
longer wished to pursue his case, he could contact defendants’
counsel about the possibility of voluntarily dismissing his case
without prejudice. See id. In an effort to keep the case on
track for an evidentiary hearing, however, the court directed
the parties to file witness lists, exhibit lists, and requests
for subpoena of witnesses on or before November 20, 2024, and
scheduled a case management conference for November 22, 2024.
See id. The court, in that order, warned Mr. Johnson that
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failure to provide current contact information, comply with the
court’s order, and/or appear at future hearings may result in
sanctions, including dismissal of his case for failure to
prosecute. See id.
Mr. Johnson filed no witness list, exhibit list, or request
for subpoena of witnesses. He also failed to appear at the
November 22, 2024 case management conference. To date, no
hearing notices or orders issued to Mr. Johnson have been
returned as undeliverable, and neither the clerk’s office nor
defendants’ counsel have heard from Mr. Johnson since his last
filing on July 8, 2024.
Discussion
“A district court, as part of its inherent power to manage
its own docket, may dismiss a case sua sponte for any of the
reasons prescribed in Rule 41(b).” Vivaldi Servicios de
Seguridad, Inc. v. Maiso Grp., Corp., 93 F.4th 27, 30 (1st Cir.
2024) (cleaned up); see also Torres-Álamo v. Puerto Rico, 502
F.3d 20, 25 (1st Cir. 2007). Rule 41(b) provides that if “the
plaintiff fails to prosecute or to comply with [the Federal
Rules of Civil Procedure] or a court order, a defendant may move
to dismiss the action or any claim against it.” Fed. R. Civ. P.
41(b).
Dismissal as a sanction under Rule 41(b) “is warranted only
when a plaintiff’s misconduct has been extreme or contumacious.”
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Vivaldi Servicios, 93 F.4th at 30 (cleaned up). In balancing
the interests of managing its docket with “the larger concerns
of justice, including the strong presumption in favor of
deciding cases on the merits,” id. at 31 (cleaned up), the court
should consider “‘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.’” Malot v. Dorado Beach
Cottages Assocs., 478 F.3d 40, 44 (1st Cir. 2007) (quoting
Benítez–García v. González–Vega, 468 F.3d 1, 5 (1st Cir. 2006)).
Mr. Johnson failed to appear at three consecutive court
proceedings. In its October 22, 2024 order, the court warned
Mr. Johnson that failure to provide current contact information,
comply with the court’s order, and/or appear at future hearings
may result in sanctions, including dismissal of his case for
failure to prosecute. Despite adequate notice and an
opportunity to be heard, Mr. Johnson failed to comply with the
October 22, 2024 order, and as already noted, did not appear at
the court’s November 22, 2024 conference. Since his July 8,
2024 filing, neither the clerk’s office nor defendants’ counsel
have heard from Mr. Johnson. Accordingly, in light of Mr.
Johnson’s repeated failures to appear and noncompliance with the
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court’s order, the district judge should dismiss this case
without prejudice under Rule 41(b) for failure to prosecute.
Conclusion
For the foregoing reasons, the district judge should
dismiss Mr. Johnson’s case without prejudice pursuant to Rule
41(b). Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. Fed. R.
Civ. P. 72(b)(2). The fourteen-day period may be extended upon
motion. Only those issues raised in the objection(s) to
this Report and Recommendation are subject to review in the
district court. See Sch. Union No. 37 v. United Nat'l Ins. Co.,
617 F.3d 554, 564 (1st Cir. 2010). Any issues not preserved by
such objection(s) are precluded on appeal. See id. Failure to
file specific written objections to the Report and
Recommendation 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).
SO ORDERED.
__________________________
Andrea K. Johnstone
United States Magistrate Judge
November 25, 2024
cc: Jacob William Johnson, pro se
Counsel of Record
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