FRANCO v. GETTER

2004 | Cited 0 times | D. Rhode Island | January 22, 2004

Report and Recommendation

Confined at the Adult Correctional Institutions, Cranston, RhodeIsland, pro se plaintiff Jose Franco filed a Complaint pursuantto 42 U.S.C. § 1983. Plaintiff names as a defendants LieutenantGetter, 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 theplaintiff, directing him to Show Cause why this case should not bedismissed for a lack of prosecution as to defendants Reynolds, Wall,Simpson, and Guilbuilt. Plaintiff has supplied a response. This matterhas been referred to me for a report and recommendation. For the reasonsthat follow, I find that defendants Reynolds, Wall, Simpson, andGuilbuilt should be dismissed from this case.

Discussion

Plaintiff filed the instant Complaint on October 4, 2002. The factualallegations contained therein are as follows: Plaintiff alleges that hean indigent inmate, and, as a result, relies on DOC officials to mail hismail. After the necessary procedures are followed, plaintiff indicatesthat he is supposed to receive a receipt, showing that his mail has beenmailed. Plaintiff indicates that he hasPage 2not been receiving receipts, and that C/O Simpson is the oneresponsible. Plaintiff indicates that C/O Simpson confiscates his mailand takes it to the "brass." Plaintiff asserts that he has filedgrievances with respect to this issue but has been unsuccessful inresolving it. Accordingly, Plaintiff filed this suit, seeking an award ofmonetary damages.

Following the filing of the Complaint, plaintiff filed a motion forservice of process and a motion to proceed in forma pauperis.The motions were ruled upon by this Court on November 7, 2002. The motionto proceed in forma pauperis was granted, and the motion forservice of process was denied. This Court instructed the plaintiff toserve the named defendants informally, by mailing the necessary forms anda copy of the complaint to each defendant. Additionally, on December 6,2002, the Clerk of Court sent the plaintiff detailed instructions and thenecessary forms to accomplish service of process. Plaintiff successfullyeffected service on Lt. Getter, and she filed an Answer in this case.

Plaintiff, however, took a one year hiatus from this litigation. Nofurther motions were filed by the plaintiff, nor was the prosecution ofthis action pursued in any manner. Service of process was not effected ondefendants Reynolds, Wall, Simpson, and Guilbuilt. On January 6, 2004,Chief Judge Torres issued the Show Cause Order, directing the plaintiffto demonstrate why the un-served defendants should not be dismissed for alack of prosecution.

In response to the Show Cause Order, plaintiff indicates that thereasons for his failure to prosecute this action are: (1) his mail is notbeing mailed in a proper way; (2) he is not sure if [the mail] is goingout. See Plaintiff's Response to Show Cause Order. Plaintiff'sreasons, however, are unconvincing.

Despite plaintiff's conclusory suggestion that his mail is "not goingout," plaintiff has failedPage 3to demonstrate that this is so. In fact, this court is keenly awarethat the plaintiff's mail has indeed been "going out," despite hisconcerns to the contrary. As evidence thereof, the Clerk of Court has inhis possession at least five lawsuits filed by Mr. Franco during the pastyear, relating to various conditions of his confinement. See Francov. Reynolds, C.A. No. 02-438T, filed October 4, 2002(concerns overthe mail procedures); Franco v. Reynolds, C.A. No. 03-94 ML,filed March 14, 2003(failure to place plaintiff in a rehabilitativeprogram); Franco v. Reynolds, C.A. No. 03-353, filed August20, 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 Amendmentclaims concerning the lack of medical care). Thus, his contention thathis mail is being interrupted is without merit.

In any event, plaintiff has failed to demonstrate any valid reason forhis lack of prosecuting this matter in a timely fashion. Plaintiff hasfailed to show cause why defendants Reynolds, Wall, Simpson, andGuilbuilt should not be dismissed from this action. These defendant havenot been timely served pursuant to Fed.R.Civ.P. 4. The Court notes thatit 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 Irecommend that defendants Reynolds, Wall, Simpson and Guilbuilt bedismissed from this action. Any objection to this report andrecommendation must be specific and must be filed with the Clerk of Courtwithin ten days of its receipt. Fed.R.Civ.P. 72(b). Failure to filetimely, specific objection to this report constitutes waiver of both theright to review by the district court and the right to appeal thedistrict court's decision. United States v. Valencia-Copete,792 F.2d 4 (1st Cir. 1986) (per curiam); Park MotorPage 4Mart. Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).

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