Valerio v. NH Department of Corrections, Commissioner et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Dwayne M. Valerio
v. Civil No. 15-cv-248-LM
N.H. Department of Corrections
Commissioner William Wrenn et al.
REPORT AND RECOMMENDATION
Before the court is defendants’ “Motion to Dismiss John
Does #4 and #5 for Failure to Prosecute” (Doc. No. 47).
Plaintiff Dwayne Valerio objects (Doc. No. 48).
On February 14, 2017, the court issued an Order (Doc. No.
43) directing defendants to produce photos of the corrections
officers who were on duty at the NHSP on October 16, 2013, so
that plaintiff could use those photos to identify those
officers. Plaintiff was directed to move to amend his complaint
to name the John Doe officers by April 17, 2017. Plaintiff
mailed his motion to amend (Doc. No. 49), to this court on or
before April 17, 2017, along with a proposed second amended
complaint (Doc. No. 49-3), in which he identified John Does #4
and #5 by name.
Defendants ask the court to dismiss the claims asserted
against John Does #4 and #5 for failure to prosecute, on the
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basis that Valerio failed to cooperate in viewing the 113
photographs produced to him in March 2017 to assist him in
identifying defendants in this matter. Plaintiff, however, had
no obligation to review the photographs. Plaintiff’s obligation
was to file a motion to amend, identifying John Doe defendants
by name, by April 17, 2017, which he did. Nothing in the record
could reasonably be construed as a failure to prosecute by
Valerio at any stage of these proceedings.
For the foregoing reasons, the district judge should deny
defendants’ motion to dismiss (Doc. No. 47). 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
October 23, 2017
cc: Dwayne M. Valerio, pro se
Seth Michael Zoracki, Esq.
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