Opinion
C.A. No. 02-356 L
February 26, 2004
Virgilio Ruiz, pro se, for Appellant
Michael Grant, Esq, for Appellee
Report and Recommendation
Plaintiff Virgilio Ruiz, an immigration detainee, filed an Amended Complaint pursuant to 42 U.S.C. § 1983 alleging a deprivation of his Eighth and Fourteenth Amendment rights. Plaintiff names as defendants the Rhode Island Department of Corrections and employees at the Adult Correctional Institutions (hereinafter collectively referred to as the "state defendants"). Plaintiff also names as defendants the Immigration and Naturalization Service and certain Immigration and Naturalization Service employees (hereinafter collectively referred to as the "federal defendants"). The federal defendants have not been served and are not a party in this case.
This matter is currently before the Court on the motion of the state defendants to dismiss pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Plaintiff has objected. This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation. For the reasons that follow I recommend that the state defendants' motion to dismiss be granted and this case dismissed with prejudice.
Background
At times relevant in the Amended Complaint, plaintiff was an immigration detainee incarcerated at the Adult Correctional Institutions. On August 8, 2002, plaintiff filed the instant 42 U.S.C. § 1983 action alleging that he had been mistreated by Rhode Island correctional officers and INS employees. This case proceeded through discovery, and the Court issued a trial notice on January 6, 2004 indicating that the calendar call would be held on February 3, 2004. Plaintiff failed to appear. He further failed to file the necessary motions and/or make arrangements to pay for his own transportation to the Courthouse. Defendants have now moved to dismiss pursuant to Fed.R.Civ.P. 41(b). Plaintiff has filed an objection.
Discussion
Rule 41(b) provides that if the plaintiff fails to "prosecute or to comply with these Rules or any order of Court, a Defendant may move for dismissal of an action, or of any claim against the Defendant." Fed.R.Civ.P. 41(b). This type of dismissal "operates as an adjudication upon the merits." Fed.R.Civ.P. 41(b).
While the court recognizes that the plaintiff is pro se and incarcerated, it is still plaintiff's responsibility to make arrangements for, and pay for, his transportation expenses to and from the Courthouse.See, e.g., Manning v. Tefft, 839 F. Supp. 126, 129-130 (D.R.I. 1994). In certain cases under 28 U.S.C. § 1915 the Court can "relieve an indigent civil litigant from the obligation to pay filing fees, costs associated with service of process and charges for certain types of stenographic transcripts." Manning, 839 F. Supp. at 129. However, section 1915 contains no provision for the payment of transportation costs; these are materially different from the costs listed. Id. Generally a "prisoner who is a plaintiff in a civil case must bear the cost of transporting himself to the place of trial and is not entitled to have that cost paid by the government."Id. at 130. Moreover, it is the plaintiff's responsibility to arrange for, by whatever means required, his transportation.
Accordingly, since the plaintiff failed to file the necessary motions to secure his presence at the Courthouse, and since he failed to make arrangements to pay for such transportation, I recommend that state defendants1 motion to dismiss be granted. It is not the Court's chore to prosecute this case, nor is it the taxpayer's responsibility to be saddled with the burden to pay for plaintiff's transportation costs in this civil action.
Conclusion
For the reasons set forth above, I recommend that the state defendants' motion to dismiss be granted, and this case dismissed with 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).