Opinion
C.A. No. 01 — 582 ML
January 23, 2003
For Plaintiff, Stephen Mattatall, Pro Se.
For Defendant, Michael Grant, Esq.
Report and Recommendation
On December 11, 2001, Stephen Mattatal, pro se, filed a compliant pursuant to 42 U.S.C. § 1983, alleging a violation of his First, Fifth, Eighth and Fourteenth Amendment rights, together with a motion to proceed in forma pauperis. Plaintiff named as defendants the Rhode Island Department of Corrections ("DOC"), Ashbel T. Wall, Walter Whitman, and Donna Collins.
Since December 11, 2001, plaintiff has failed to prosecute this action in any manner. He has also failed to secure the service of process on the named defendants. On December 6, 2002, Judge Lisi ordered the plaintiff to show good cause why this case should not be dismissed for lack of prosecution. Plaintiff provided a timely written response, which has been referred to this writer pursuant to 28 U.S.C. § 636(b)(1)(B).
In his response to the show cause order, plaintiff avers that he sent the copies of the Complaint, the Amended Complaint, and summons to the Department of Corrections Legal Office via inter-department mail. Plaintiff asserts he then sent copies of the "Notice of Lawsuit" forms and "Waiver of Service" forms to the DOC's legal office. Plaintiff contends that the DOC's Legal Counsel refused to accept service. Other than passing the blame on the DOC's legal office for their alleged failure to accept service, plaintiff offers no other reason for his failure to prosecute.
The plaintiff failed to file an Amended Complaint with the Court in this case.
I find that plaintiff has failed to show good cause on why this case should not be dismissed, without prejudice. First, Plaintiff has failed to secure the service of process on the named defendants. This is his responsibility. See Fed.R.Civ.P. 4. Service of the individual named defendants at the DOC can be accomplished by mailing, via interdepartmental mail, a copy of the Complaint and the necessary forms to each of the individual named defendants. The DOC Legal Counsel has no authority to accept service of process on the individual defendant's behalf.
Second, plaintiff has failed to provide any reason for his hiatus from this case. The plaintiff has not filed any motions, nor sought to prosecute this case in any manner whatsoever since his original filing of the Complaint and the in forma pauperis motion on December 11, 2001.
Accordingly, I recommend that the instant action be dismissed without prejudice. 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 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).