Opinion
C.A. No. 01-121 L
March 4, 2002
Ronald Bourdeau, pro se.
Michael B. Grant, Esq., Attorney for Appellee.
Report and Recommendation
Ronald Bourdeau, pro se, an inmate incarcerated at the Adult Correctional Institutions, Cranston, Rhode Island, has filed a Complaint with this Court pursuant to 42 U.S.C. § 1983 alleging a violation of his Eighth Amendment rights. Plaintiff also asserts various state law claims. Plaintiff names as defendants Alfred Leach, Joseph Alves, and Vinnie Jackavone.
This matter is currently before the Court on the plaintiff's third motion for an entry of default. This matter has been referred to me for a report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B). For the reasons set forth below, I recommend that plaintiff's motion for an entry of default be denied. Additionally, plaintiff is hereby granted leave to file a motion to compel pursuant to Fed.R.Civ.P. 37, if he so desires, within ten days of the date of this report and recommendation.
Discussion
Plaintiff Ronald Bourdeau filed a complaint pursuant to 42 U.S.C. § 1983 alleging a violation of his rights secured under the Eighth Amendment to the U.S. Constitution. On October 25, 2001, this writer held a telephonic pretrial conference with the plaintiff and counsel for the defendants. During the conference, a pretrial order was issued, which set the closure date for discovery at November 26, 2001, with pretrial memoranda due on or before December 26, 2001.
On December 3, 2001, plaintiff field the instant motion. In the motion, plaintiff contends that he mailed a discovery request to the defendants. Plaintiff maintains that the defendants have failed to comply with this discovery request. Thus, plaintiff asserts that the defendants violated the pretrial order and that the defendants have failed to comply with Fed.R.Civ.P. 16. Accordingly, Plaintiff maintains that he is entitled to an entry of default.
Plaintiff has failed to provide the Court with the discovery request.
However, plaintiff has failed to set forth what information he actually seeks that has not been provided by the defendants and has failed to provide the Court any other details other than these naked assertions. Thus this Court will not recommend an entry of default.
Defense counsel avers in their objection that they have responded to all of plaintiff's requests.
Moreover, at this stage, a more appropriate remedy, rather than an entry of default, is an order compelling the defendants to respond to plaintiff's discovery requests, pursuant to Fed.R.Civ.P. 37. Accordingly, plaintiff is hereby granted leave to file a motion to compel discovery. Said motion shall be filed, if plaintiff so desires, no later than ten days from the date of this report and recommendation. Plaintiff shall bespecific in the information he seeks that has not been disclosed, and shall state why it is relevant to his claims. Defendants will then have ten days to object or otherwise respond to the motion to compel.
Conclusion
For the reasons set forth above, I recommend that the plaintiff's motion for the entry of default be denied. Plaintiff is hereby granted leave to file a motion to compel discovery. Said motion shall be filed within ten days of the date of this report and recommendation.
Any objection to this report and recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes a waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).