JACOB HAGOPIAN, United States Magistrate Judge.
Plaintiff Michael J. Wheelock, Sr., pro se, has filed a complaint pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights against various prison employees and medical personnel at the Adult Correctional Institution. Presently before the Court are the motions of defendant Anne Spaulding, M.D., for conditional orders of dismissal pursuant to Fed.R.Civ.P. 37(b) due to the plaintiff's alleged failure to comply with discovery orders entered in this case. The plaintiff has not objected to the instant motions.
Defendant Spaulding has filed two motions to dismiss although only one appears on the Court's docket sheet and only one appears in the Court's file. They are: (1) Motion to Dismiss for a Failure to Provide More Responsive Answers to Interrogatories, and (2) Motion to Dismiss for Failure to Produce Documents. This Report and Recommendation reaches both of these motions.
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 defendant Spaulding's motions for conditional orders of dismissal be denied.
Background
Plaintiff Michael Wheelock filed a Complaint pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Plaintiff names as defendants various prison employees and medical personnel, including Dr. Anne Spaulding, the movant in the instant motions.
Following the commencement of discovery, defendant Spaulding moved to compel answers to interrogatories and to compel the production of documents. Spaulding's motions to compel were granted by the Clerk of Court pursuant to Local Rule 12(a)(2) on November 15, 2000. Thereafter, on December 18, 2000, the Clerk of Court received Plaintiff's untimely objection to Spaulding's motions to compel. This objection, for some unexplained reason, has not been placed on the Court's docket sheet, nor has it been properly placed into the Court's file.
Defendant Spaulding has now moved for a conditional order of dismissal, pursuant to Fed.R.Civ.P. 37, based on plaintiff's failure to comply with the November 15, 2000 Orders, granting her motions to compel.
Discussion
Rule 37(b) of the Federal Rules of Civil Procedure provides, in pertinent part,
(2)Sanctions by the Court in Which the Action is Pending. If a party or an officer . . . fails to obey an order to provide or permit discovery . . . the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: . . .
(C) An order striking out the pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgement by default against the disobedient party;
Here, defendant Spaulding seeks a conditional order of dismissal based upon plaintiff's failure to comply with the Orders entered by the Clerk of Court pursuant to Rule 12(a)(2) of the Local Rules on November 15, 2000. However, after a review of the Court file in this case, plaintiff has submitted an objection, albeit untimely, to the underlying motion to compel.
In his objection to the motion to compel, plaintiff avers that he does not possess the documents which Spaulding seeks, and that he is unable to answer her interrogatories. Since the plaintiff does not posses the documents defendant Spaulding seeks, and since the plaintiff is unable to answer the interrogatories propounded, and considering that the plaintiff is pro se and incarcerated, I find that defendant Spaulding's motions for conditional orders of dismissal should be denied. Plaintiff can not produce what he does not have, nor answer what he does not know.
Conclusion
Accordingly, for the reasons stated above, I recommend that defendant Spaulding's motions for conditional orders of dismissal should be denied. 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).