Opinion
C.A. No. 04-246 T.
November 8, 2004
Report and Recommendation
On June 21, 2004, Dennis Rowe, pro se, filed with the Court a Complaint pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971), claiming violations of his federally protected rights. With his Complaint, plaintiff filed a motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff's motion to proceed in forma pauperis was deficient: plaintiff failed to include a certified copy of his prison trust account statement. Accordingly, on June 28, 2004, this Court Ordered the plaintiff to produce his trust account statement within twenty days. Plaintiff, however, did not provide the statement and the District Court dismissed this case on August 9, 2004.
Following dismissal of the case, on September 24, 2004, plaintiff belatedly complied with this Court's Order and supplied his prison trust account statement. With his trust statement, plaintiff filed a motion seeking three forms of relief: (1) to proceed in forma pauperis, (2) to remove certain defendants from the case, and (3) to vacate the Judgment and Order of dismissal. This instant report and recommendation concerns only plaintiff's motion to vacate the Judgment and Order of dismissal.
The Court will entertain plaintiff's other motions only if the District Court re-opens this case.
Plaintiff's motion, insofar as it seeks to vacate the Judgment and Order of dismissal, asserts the following: Plaintiff indicates that he is confined at a penitentiary in Florida. Following this Court's Order on June 28, 2004, plaintiff requested his prison trust account statement from prison officials. However, the confinement facility where he was located was on "lock down" status, due to a disruption in security and because of the impending hurricanes that were about to strike the state. Plaintiff indicates that he received his account statement on September 17, 2004 when the prison resumed its normal operations.
Considering that the plaintiff does not appear to be responsible for the delay in responding to this Court's Order, and considering that plaintiff filed a response when the circumstances permitted him to, I recommend that plaintiff's motion to vacate the Judgment and Order of dismissal be granted, and this case re-opened. 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).