United States District Court, D. Vermont
Justin L. Byrne, Plaintiff,
Mary Trudell, Jenna Goguen, Joanne Pereira, Tom Dunn, Jeffrey Leggio, Andrew Pallito, Dave Nesbitt, Defendants.
REPORT AND RECOMMENDATION (Doc. 61)
JOHN M. CONROY, Magistrate Judge.
Plaintiff Justin L. Byrne, proceeding pro se and in forma pauperis, commenced this action against Defendants Mary Trudell, Jenna Goguen, Joanne Pereira, Tom Dunn, Jeffrey Leggio, Andrew Pallito, and Dave Nesbitt, alleging common-law negligence and defamation and constitutional rights violations pursuant to 42 U.S.C. § 1983. (Doc. 4 at 4.) Pending before the Court is Defendants' Motion to Dismiss for Failure to Prosecute under Fed.R.Civ.P. 41(b) and failure to comply with discovery obligations under Fed.R.Civ.P. 37. (Doc. 61.) Byrne has filed no response. On June 3, 2014, a hearing was held on Defendants' Motion. Emily A. Carr, Esq. appeared on behalf of Defendants. Byrne did not appear.
For the following reasons, I recommend that Defendants' Motion to Dismiss be GRANTED.
The following summary of relevant facts is based on allegations made in Byrne's Complaint. On May 17, 2012, the State of Vermont released Byrne from incarceration following his completion of a custodial sentence for a probation violation. (Doc. 4 at 4.) Upon release, he remained on probation with orders to report to a supervising officer and observe conditions of continued supervision. ( Id. ) For seven years, Byrne successfully complied with probation conditions, including treatment, counseling, and community service. ( Id. ) At 11:30 p.m. on May 27, 2012, two Field Supervision Unit officers, Defendants Jeffrey Leggio and Dave Nesbitt, made an unannounced visit to the residence where Byrne lived with his grandparents, and performed a warrantless search. ( Id. at 5.) Byrne repeatedly asked Leggio and Nesbitt "if this was legal and if the time was reasonable according to the laws and procedures of probation." ( Id. ) Leggio and Nesbitt told Byrne that they could "visit [him] 365/24/7" and that they had come earlier when he was not home. ( Id. ) They asked Byrne why "[two] or three underage girls" were at the residence, a violation of his probation conditions. ( Id. )
On June 29, 2012, Defendants Goguen and Trudell, Byrne's probation officers, interrogated Byrne and cited him for violating probation conditions. ( Id. ) Byrne was convicted of the violation charge and returned to prison, resulting in the loss of "all existing business that he had and clients that were recently a[c]quired" and "many r[e]lationships." ( Id. at 6.) While incarcerated, Byrne was "punished" as a result of "false information sent in emails from probation officer[s]... to multiple guards and case workers at the facility." ( Id. )
Byrne asserts Eighth Amendment and Fourteenth Amendment due process claims against all Defendants; negligence and defamation claims against Defendants Goguen, Trudell, Pereira, Dunn, and Pallito; and Fourth Amendment claims against Defendants Leggio and Nesbitt. ( Id. at 8.) He seeks declaratory and injunctive relief, as well as compensatory and punitive damages. ( Id. at 8-9.)
On May 21, 2013, this Court adopted a Report and Recommendation granting in part and denying in part Defendants' motion to dismiss for failure to state a claim. (Docs. 24, 28.) On August 28, 2013, Byrne moved for a temporary restraining order ("TRO") to prohibit Defendants Leggio and Nesbitt from entering a property where he was residing in Wolcott, Vermont. (Doc. 36.) Byrne reported that he was no longer incarcerated and was residing at 783 North Wolcott Road, Wolcott, Vermont. (Doc. 34.) On October 9, 2013, the Court held a hearing on Byrne's motion for a TRO. (Doc. 45.) Notice of the hearing had been sent to Byrne at his Wolcott address. (Doc. 44.) Byrne did not appear for the hearing, and the Court rescheduled it for a later date. On October 23, 2013, Byrne appeared at the rescheduled hearing on his motion for a TRO and withdrew the motion, informing the Court that it was moot. (Doc. 54.) The Court has not heard from Byrne since that date.
On September 19, 2013, the Court entered a Stipulated Discovery Schedule/Order prepared by the parties and ordered that discovery be completed by March 15, 2014. (Doc. 42.) According to the discovery schedule, initial disclosures were due by October 15, 2013. Defendants timely served interrogatories and requests for production of documents on Byrne, but Byrne failed to serve any initial disclosures. He also failed to respond to Defendants' discovery. On February 4, 2014, Defendants moved to compel discovery responses from Byrne. (Doc. 57.) Byrne did not respond to the motion. On March 6, 2014, the Court granted Defendants' motion to compel as unopposed and ordered Byrne to respond to Defendants' discovery requests and produce initial disclosures as required by Fed.R.Civ.P. 26 by April 1, 2014. (Doc. 58.) The Court warned Byrne that failure to obey the Order or engage in discovery could result in sanctions, including dismissal of the Complaint. A copy of the Court's Order was sent to Byrne via U.S. Mail at the Wolcott address Byrne had provided to the Court.
On April 4, 2014, Defendants filed the instant Motion to Dismiss for lack of prosecution, pursuant to Fed.R.Civ.P. 37 and 41(b), arguing that the Court should dismiss Byrne's remaining claims for failure to engage in discovery. (Doc. 61.) Defense counsel has provided a sworn affidavit setting forth appropriate service of discovery requests on Byrne and his failure to respond. (Doc. 57-1.) The Court scheduled a hearing on Defendants' Motion for June 3, 2014, and a notice of hearing was mailed to Byrne at his Wolcott address. (Doc. 62.) Prior to the hearing, the undersigned asked the Deputy Clerk to telephone Byrne at the number associated with Byrne's address in an effort to determine if Byrne was planning to appear at the hearing. (Doc. 63.) A female answered the phone and advised the Deputy Clerk that Byrne no longer resided at the Wolcott address, though on occasion Byrne did pick up his mail there. ( Id. )
Byrne did not appear at the June 3rd hearing. Attorney Carr represented to the Court that she had not communicated with Byrne via telephone (or otherwise) since January 30, 2014. Carr suggested that attempts to serve Byrne using the Wolcott address appeared to have been successful, as two motions she had mailed to that address had not been returned as undeliverable. Byrne has not filed a notice of change of address with the Court since he filed the August 28, 2013 notice advising that his proper address was the Wolcott address. (Doc. 34.)
I. Dismissal Under ...