United States District Court, District of Rhode Island
JAMES V. MONACELLI, Plaintiff,
A.T. WALL, Defendant.
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE
Plaintiff James V. Monacelli has sued Rhode Island Department of Corrections (“RIDOC”), its Director and Assistant Director, three supervising officers and four correctional officers. Styled as a “Letter of Complaint, ” his pleading describes a series of incidents that occurred while he was incarcerated at the Adult Correctional Institutions (“ACI”) beginning in February, 2012. No longer a prisoner, and unwilling to pay the $400 filing fee, Plaintiff has filed an Application to Proceed without Prepayment of Fees and Affidavit, seeking leave to proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915(a)(1). His IFP motion has been referred to me. In light of my conclusion that his IFP motion should be denied without prejudice, I address the motion by report and recommendation. Janneh v. Johnson & Wales Univ., No. 11-352 ML, 2011 WL 4597510, at *1 (D.R.I. Sept. 12, 2011) (denial of a motion to proceed in forma pauperis is functional equivalent of an involuntary dismissal and magistrate judge should issue report and recommendation for final decision by district court).
Section 1915 permits persons otherwise unable to access the courts to proceed without paying costs such as the filing fee, which instead are defrayed at public expense. 28 U.S.C. § 1915(a)(1). While “[i]nability to pay” is a nettlesome concept, this Court must “hold the balance steady and true as between fairness to the putatively indigent suitor and fairness to the society which ultimately foots the bill.” Temple v. Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984). While a plaintiff may not be required to pay “the last dollar they have or can get, and thus make themselves and their dependents wholly destitute, ” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948), “a plaintiff, even though of small means, could reasonably be asked to some small degree to ‘put his money where his mouth is, ’ it being all too easy to file suits, even with sufficient pro forma allegations, if it costs nothing whatever to do so.” In re Stump, 449 F.2d 1297, 1298 (1st Cir. 1971) (per curiam). In making the determination whether a litigant is unable to pay, this Court must take into account the applicant’s income, including the amount and applicable period, and his monthly expenses for housing, transportation, utilities and loans. See Choquette v. Astrue, CA 08-384ML, 2008 WL 4616706 (D.R.I. Oct. 16, 2008) (detailed affidavit outlining Plaintiff's income and monthly expenses). Plaintiff’s Application supplies none of this information, except for the monthly payment he makes on a car loan. Accordingly, I recommend that his Application be denied without prejudice to his filing a new Application, supplemented by complete information regarding his income, expenses and assets, so that a better assessment of his ability to pay can be made.
With his IFP motion denied, the preliminary screening provided for in § 1915 is not necessary, though it remains permissible. See Chiras v. Unibank, No. 11-40201-FDS, 2011 WL 6370033, at *1-2 (D. Mass. Dec. 16, 2011) (whether plaintiff may avoid IFP preliminary screening by paying filing fee moot when court already determined complaint failed to state a claim); D’Amario v. Roy, No. 08-24ML, 2008 WL 3200699, at *1 (D.R.I. Aug. 5, 2008) (even if plaintiff pays filing fee, dismissal at screening still appropriate). Even if § 1915 is considered inapplicable once IFP status is denied, this Court retains the inherent authority to manage its cases. See Batavitchene v. O’Malley, No. 13-10729-GAO, 2013 WL 1682376, at *2 (D. Mass. Apr. 16, 2013) (while no preliminary screening is authorized when plaintiff has paid filing fee and is not proceeding in forma pauperis, court retains inherent authority to manage its cases and review a case to determine whether or not it is frivolous). Accordingly, I observe that the Letter of Complaint, as currently crafted, does not appear to state a viable claim as to several of the incidents alleged and several of the named defendants. In addition, it fails to comport with Fed.R.Civ.P. 10 in that it lacks a caption and separately-numbered paragraphs setting out the claims and fails to comport with Fed.R.Civ.P. 8(a) in that it fails to allege diversity or to state the federal statute or constitutional provision under which Plaintiff is proceeding so as to give rise to federal jurisdiction, as required by Fed.R.Civ.P. 8(a)(1); it also fails to make a demand for the relief sought as required by Fed.R.Civ.P. 8(a)(3).
A short exposition of Plaintiff’s history as a litigant in this Court is useful background to the facts set out in his Letter of Complaint. Plaintiff has brought three civil actions in this Court, including this one. The first was filed pro se in July 2009 while Plaintiff was incarcerated. Monacelli v. Potters, C.A. No. 09-330S. Initially, his motion to proceed in forma pauperis was granted, but after he was released, this Court ordered him to make partial payment of the filing fee. The 2009 Complaint was grounded on various provisions of federal law and the United States Constitution, arising from alleged police brutality during his arrest on June 10, 2008. This Complaint was dismissed with prejudice on February 24, 2011.
Plaintiff’s next pro se Complaint, filed on August 1, 2011, while Plaintiff was not incarcerated, was accompanied by a motion to proceed in forma pauperis, which was granted on August 9, 2011. Monacelli v. Wall, C.A. No. 11-337S. By March 5, 2012, Plaintiff was again an inmate at the ACI, based on his change of address filing. On May 22, 2012, he filed another change of address notice indicating that he had been released.
Styled with a caption and laid out in numbered paragraphs that clearly identified each named defendant and the relevant statutes and constitutional provisions, the 2011 Complaint focused on Plaintiff’s treatment while incarcerated after he brought to the attention of the Deputy Warden a physical confrontation between another inmate and a correctional officer. On Defendants’ Motion to Dismiss, this Court found the 2011 Complaint deficient, except for the claim against Lieutenant Paquette in his individual capacity based on the allegation that he had informed other inmates that Plaintiff was an informant. Even that claim was found to be insufficient to provide fair notice; Plaintiff was ordered to file an Amended Complaint. Plaintiff complied, but this Court found that the Amended Complaint suffered from the same deficiencies and the case was dismissed in toto, except that the Court carved out any claims that “Plaintiff may have . . . against any defendant based on ‘events occurring during his return to the Rhode Island Dept. of Corrections, as recently as February 24th of , ’” as to which the Court ruled that Plaintiff would be “required to commence a new action.” Monacelli v. Wall, No. CA 11-337 S, 2012 WL 4482350, at *3 (D.R.I. Aug. 21, 2012), adopted by, Monacelli v. Wall, No. CA 11-337 S, 2012 WL 4482400 (D.R.I. Sept. 26, 2012). The Letter of Complaint apparently constitutes the “new action, ” in that it focuses on a series of events that occurred after Plaintiff was recommitted to the RIDOC on or about February 24, 2012.
The allegations in the Letter of Complaint appear to fall into three buckets.
First, Plaintiff complains of trouble with mail, telephone and law library schedules during his first week at the ACI Intake Center, including a comment by Lieutenant Paquette, using foul language, to the effect that Plaintiff should get nothing. ECF No. 1 at 1. As described in his Letter of Complaint, the situation was quickly resolved once prison officials affirmed that Plaintiff had a case pending. The Letter of Complaint describes that he was “surprised and satisfied” with how this circumstance was handled. Id. at 3.
Second, the Letter of Complaint makes allegations about Plaintiff’s commitment to the segregation unit as a result of his participation in the altercation that is the centerpiece of his claim. Id. at 7. While in segregation for an unknown amount of time, his telephone access to his attorney, contact with family and other things were restricted. However, his Letter of Complaint supplies no information regarding how long he was in segregation or how these restrictions affected him and his pending litigation. Plaintiff also claims that he was given a piece of clothing contaminated with lice while in segregation.
Plaintiff’s third claim is more troubling but also is insufficient in various respects. It appears to allege that an unnamed prisoner influenced another prisoner to draw Plaintiff into a violent fight. In his Letter of Complaint, Plaintiff claims that this incident was the product of a conspiracy among several named defendants and others, including Lieutenant Paquette and the four named correctional officers (Correctional Officers Peters, Grant, Delgado and Corey). His Letter of Complaint seems to ground this allegation in speculation that the events could not have occurred without facilitation by prison officials. Of the named defendants, only Correctional Officers Corey,  Peters and Delgado are linked to the incident, and Correctional Officer Delgado is not described as doing anything inappropriate.
Plaintiff’s claims against the RIDOC are barred by sovereign immunity. See Poirier v. Mass. Dep’t of Corr., 558 F.3d 92, 97 (1st Cir. 2009) (affirming dismissal of § 1983 suit brought against department of corrections because “[s]tates and their agencies are entitled to sovereign immunity ‘regardless of the relief sought’”) (quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985)); Johnson v. Rodriguez, 943 F.2d 104, 108 (1st Cir. 1991) (state agency may not be sued for damages in a § 1983 action). Similarly, to the extent that the Letter of Complaint seeks money damages from any of the named defendants based on acts or omissions in their official capacities, it fails to state a claim upon which relief can be granted. See Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 124 (1st Cir. 2003) (“No cause of action for damages is stated under 42 U.S.C. § 1983 against a state, its agency, or its officials acting in an official capacity.”) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)); Johnson, 943 F.2d at 108 (1st Cir. 1991) (“It is settled beyond peradventure . . . that ...