USCA1 Opinion
June 28, 1996
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-2159
No. 95-2160
CHRISTOPHER HIGHTOWER,
Plaintiff, Appellant,
v.
GEORGE A. VOSE, JR., ET AL.,
Defendants, Appellees.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Stahl and Lynch, Circuit Judges. ______________
____________________
Christopher Hightower on brief pro se. _____________________
Michael B. Grant, Senior Legal Counsel, Rhode Island Department _________________
of Corrections, on brief for appellees.
____________________
____________________
Per Curiam. On September 14, 1995, United States __________
marshals removed appellant Christopher Hightower, a Rhode
Island state prisoner, from the Menard Correctional Center in
Illinois and transported him to Rhode Island for bench trials
in civil actions Nos. 93-0286T, 94-0364T. On October 2,
1995, the district court dismissed both cases with prejudice
after Hightower failed to present any evidence. Hightower
appeals both dismissals.
We treat the district court's dismissals as issued
pursuant to Rule 41(b), and we find no error.1 See, e.g., 1 ___ ____
Zagano v. Fordham University, 900 F.2d 12, 14 (2d Cir.) ("It ______ __________________
is beyond dispute that a district court may dismiss a case
under Rule 41(b) when the plaintiff refuses to go forward
with a properly scheduled trial."), cert. denied, 498 U.S. ____________
899 (1990). In civil action No. 93-0286T, Hightower had more
than ample time to conduct discovery and prepare for trial.
Although the discovery period in civil action No. 94-0364T
was relatively brief, Hightower does not state what
additional discovery was necessary to prepare for trial much
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1Appellant suggests without developed argumentation that 1
the district court might have relied on Fed. R. Civ. P. 52(c)
as authority for the dismissals. We need not consider this
possibility since it would not alter our disposition.
Appellant also suggests that the dismissal of civil action
No. 93-0286T was based, in the alternative, on Fed. R. Civ.
P. 12(b)(6) and Sandin v. Conner, 115 S. Ct. 2293 (1995). ______ ______
Since the dismissal can be upheld under Rule 41(b), we need
not resolve whether the complaint in civil action No. 93-
0286T states a claim.
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less adequately explain why he was unable to accomplish it.2 2
Under the circumstances, we cannot say that the district
court abused its discretion by insisting that Hightower
proceed to trial, and then dismissing the case when Hightower
failed to present any evidence. See Capo v. United States, 7 ___ ____ _____________
F.3d 283, 284 (1st Cir. 1993) (stating that Rule 41(b)
dismissals are reviewed for abuse of discretion); Amarin ______
Plastics, Inc. v. Maryland Cup Corp., 946 F.2d 147, 151 (1st _______________ __________________
Cir. 1991) (observing that the district court is accorded
broad discretion to grant or deny continuances).
Contrary to Hightower's suggestion, we do not think
his pending motions for a continuance can excuse his failure
to be prepared for trial. Rule 21(a) of the Local Rules of
the District of Rhode Island warns litigants that "a trial
date will not be vacated nor a continuance granted except in
the most extraordinary circumstances," and Hightower could
not rely on the possibility that the court would rule in his
favor. To hold otherwise, would be to permit litigants to
manipulate trial dates.
Hightower also complains that he was transported
from Illinois to Rhode Island without any of his legal
documents. We are unmoved by this complaint in the absence
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2Contrary to Hightower's suggestion, Fed. R. Civ. P. 26(d) 2
is inoperative in the District of Rhode Island insofar as it
restricts the commencement of discovery. See General Order ___
of the District of Rhode Island dated May 9, 1994.
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of some explanation of what these documents are and why they
were necessary. Hightower also fails to state, and the
record before us fails to show, that he brought the matter to
the district court's attention and explained why the
documents were essential. We add that Hightower could have
proceeded to offer his own testimony as evidence. If he had
done so, and if the record had contained some description of
the documents left in Illinois, we would be in a position to
assess whether Hightower suffered any prejudice. As it is,
there is no basis for a finding of error.
Finally, we add that Local Rule 9 authorizes the
placement of cases on a continuous trial calendar. Hightower
has not identified what witnesses he wished to call or stated
whether he attempted to subpoena them once it became apparent
that the cases were proceeding towards trial. Under the
circumstances, we are unpersuaded that he was "forced to
trial without any witnesses." We have carefully considered
Hightower's remaining arguments and reject them either on the
ground that they are meritless or are waived for failure to
raise in the court below.
Affirmed. _________
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