Opinion
C.A. No. 02-438 T
January 22, 2004
Report and Recommendation
Confined at the Adult Correctional Institutions, Cranston, Rhode Island, pro se plaintiff Jose Franco filed a Complaint pursuant to 42 U.S.C. § 1983. Plaintiff names as a defendants Lieutenant Getter, Michael Reynolds, C/O Simpson, C/O Guilbuilt, and A.T. Wall, employees or officials at the Rhode Island Department of Corrections ("DOC").
On January 6, 2004, Chief Judge Torres issued an Order to the plaintiff, directing him to Show Cause why this case should not be dismissed for a lack of prosecution as to defendants Reynolds, Wall, Simpson, and Guilbuilt. Plaintiff has supplied a response. This matter has been referred to me for a report and recommendation. For the reasons that follow, I find that defendants Reynolds, Wall, Simpson, and Guilbuilt should be dismissed from this case.
Discussion
Plaintiff filed the instant Complaint on October 4, 2002. The factual allegations contained therein are as follows: Plaintiff alleges that he an indigent inmate, and, as a result, relies on DOC officials to mail his mail. After the necessary procedures are followed, plaintiff indicates that he is supposed to receive a receipt, showing that his mail has been mailed. Plaintiff indicates that he has not been receiving receipts, and that C/O Simpson is the one responsible. Plaintiff indicates that C/O Simpson confiscates his mail and takes it to the "brass." Plaintiff asserts that he has filed grievances with respect to this issue but has been unsuccessful in resolving it. Accordingly, Plaintiff filed this suit, seeking an award of monetary damages.
Following the filing of the Complaint, plaintiff filed a motion for service of process and a motion to proceed in forma pauperis. The motions were ruled upon by this Court on November 7, 2002. The motion to proceed in forma pauperis was granted, and the motion for service of process was denied. This Court instructed the plaintiff to serve the named defendants informally, by mailing the necessary forms and a copy of the complaint to each defendant. Additionally, on December 6, 2002, the Clerk of Court sent the plaintiff detailed instructions and the necessary forms to accomplish service of process. Plaintiff successfully effected service on Lt. Getter, and she filed an Answer in this case.
Plaintiff, however, took a one year hiatus from this litigation. No further motions were filed by the plaintiff, nor was the prosecution of this action pursued in any manner. Service of process was not effected on defendants Reynolds, Wall, Simpson, and Guilbuilt. On January 6, 2004, Chief Judge Torres issued the Show Cause Order, directing the plaintiff to demonstrate why the un-served defendants should not be dismissed for a lack of prosecution.
In response to the Show Cause Order, plaintiff indicates that the reasons for his failure to prosecute this action are: (1) his mail is not being mailed in a proper way; (2) he is not sure if [the mail] is going out. See Plaintiff's Response to Show Cause Order. Plaintiff's reasons, however, are unconvincing.
Despite plaintiff's conclusory suggestion that his mail is "not going out," plaintiff has failed to demonstrate that this is so. In fact, this court is keenly aware that the plaintiff's mail has indeed been "going out," despite his concerns to the contrary. As evidence thereof, the Clerk of Court has in his possession at least five lawsuits filed by Mr. Franco during the past year, relating to various conditions of his confinement. See Franco v. Reynolds, C.A. No. 02-438T, filed October 4, 2002(concerns over the mail procedures); Franco v. Reynolds, C.A. No. 03-94 ML, filed March 14, 2003(failure to place plaintiff in a rehabilitative program); Franco v. Reynolds, C.A. No. 03-353, filed August 20, 2003 (failure to place plaintiff in a rehabilitative program);Franco v. Reynolds, C.A. No. 03-603, filed December 22, 2003(Eighth Amendment claims concerning safety); Franco v. Dale, C.A. No. 04-412 ML, filed January 14, 2004 (Eighth Amendment claims concerning the lack of medical care). Thus, his contention that his mail is being interrupted is without merit.
In any event, plaintiff has failed to demonstrate any valid reason for his lack of prosecuting this matter in a timely fashion. Plaintiff has failed to show cause why defendants Reynolds, Wall, Simpson, and Guilbuilt should not be dismissed from this action. These defendant have not been timely served pursuant to Fed.R.Civ.P. 4. The Court notes that it is the plaintiff's responsibility to effect service on the defendants.See Fed.R.Civ.P. 4(c)(1).
Conclusion
Accordingly, I find that cause has not been demonstrated and I recommend that defendants Reynolds, Wall, Simpson and Guilbuilt be dismissed from this action. 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). Failure to file timely, specific objection to this report constitutes 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).