
USCA1 Opinion

	




          June 28, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2159        No. 95-2160                                CHRISTOPHER HIGHTOWER,                                Plaintiff, Appellant,                                          v.                             GEORGE A. VOSE, JR., ET AL.,                                Defendants, Appellees.                                 ____________________                    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                                            ____________________               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.                                           -3-            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                                            ____________________               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.                                         -4-            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.                      _________                                         -5-
