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Cerullo v. Wall

United States District Court, D. Rhode Island

December 18, 2014

ALEC CERULLO, Plaintiff,
v.
ASHBEL T. WALL, Defendant.

MEMORANDUM AND ORDER

MARY M. LISI, District Judge.

Plaintiff Alec Cerullo, pro se, an inmate at the Adult Correctional Institutions ("ACI"), has filed a Complaint (Doc. #1) pursuant to 42 U.S.C. § 1983, a Motion for Appointment of Counsel (Doc. #2) ("Motion for Counsel"), and an Application to Proceed without Prepayment of Fees and Affidavit (Doc. #3) ("Application"). The Court is required to screen the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1916A.

DISCUSSION

I. Screening

In connection with proceedings in forma pauperis, Section 1915(e)(2), 28 U.S.C., directs the Court to dismiss a case at any time if the Court determines that the action is, inter alia, frivolous or fails to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2). Similarly, Section 1915A, 28 U.S.C., directs courts to screen complaints filed by prisoners against a governmental entity, officer or employee and dismiss such claims for identical reasons. 28 U.S.C. § 1915A(b).

Chase v. Chafee, No. CA 11-586ML, 2011 WL 6826504, at *1 (D.R.I. Dec. 9, 2011). The legal standard for dismissing a complaint for failure to state a claim pursuant to §§ 1915(e)(2) and 1915A is the same as the legal standard used for ruling on a 12(b)(6) motion. Id. at *2.

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id .; see also Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 13 (1st Cir. 2013)("The relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw from the facts alleged in the complaint."). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (internal quotation marks omitted."). However, "[w]here a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id . (internal quotation marks omitted.). "In order to show an entitlement to relief, a complaint must contain enough factual material to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true....'" Ocasio-Hernández, 640 F.3d at 12 (quoting Twombly, 550 U.S. at 555).

"In making this determination, the Court must accept plaintiff's well-pleaded factual allegations as true and construe them in the light most favorable to plaintiff, although the Court need not credit bald assertions, unverifiable conclusions or irrational factual allegations." Chase, 2011 WL 6826504, at *2 (citing Iqbal, 556 U.S. at 678). Moreover, the Court must review pleadings of a pro se plaintiff liberally. Estelle v. Gamble, 429 U.S. 97, 106 (1976).

II. Complaint

In his Complaint Plaintiff names as Defendant Ashbel T. Wall, Director of the Rhode Island Department of Corrections ("RIDOC"), "and everyone who is involved to[o]." Complaint at 3. He does not identify "everyone who is involved..., " in violation of Federal Rule of Civil Procedure 10(a) and District of Rhode Island Local Rule 5. See Fed.R.Civ.P. 10(a) ("The title of the complaint must name all the parties"); DRI LR Cv 5(a)(1) ("Any pleading or other document asserting a claim or counterclaim of any type shall include the full caption showing the names of all parties."). Plaintiff seeks restoration of good time he alleges he lost as well as damages for pain and suffering and emotional distress. Complaint at 3.

In its present form Plaintiff's Complaint is incoherent and subject to dismissal for failure to state a claim. Throughout the Complaint Plaintiff refers to "they, " without making specific allegations against named individuals.[1] Nor does Plaintiff identify what constitutional or statutory rights he alleges were violated. His only indication of the Court's jurisdiction appears on the Civil Cover Sheet filed with the Complaint. Although Plaintiff provides some dates, they are not in chronological order. In short, the Complaint lacks a "short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2); see also Iqbal, 556 U.S. at 678 ("A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.").

The Court will allow Plaintiff the opportunity to file an amended complaint if he chooses to do so. Such amended complaint shall:

1) Be entitled "Amended Complaint;"
2) List the names of all of the defendants in ...

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