United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, Magistrate Judge.
On February 17, 2015, Plaintiff James Goddard filed a pro se civil rights complaint together with a motion for leave to proceed in forma pauperis ("IFP"). ECF Nos. 1, 2. Based on my review of the application and supporting documents, I conclude that Plaintiff has satisfied the requirements of 28 U.S.C. § 1915(a)(2); accordingly, his IFP motion will be granted if the case survives screening. However, because of the IFP application and Plaintiff's status as a prisoner, this case is subject to preliminary screening under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Based on my review of the operative pleading,  I find that it fails to state a claim upon which relief may be granted. Accordingly, I recommend that Plaintiff be granted leave to file an amended complaint within thirty days of this Court's adoption of this recommendation that states an actionable claim (if he has one). Such an amended complaint must overcome the deficits identified in this report and recommendation; if an amended complaint is not timely filed, or if the amended complaint still fails to state a claim, this action should be dismissed.
Plaintiff's complaint arises under 42 U.S.C. § 1983 based on his claim that he was charged and punished for three infractions ("bookings") arising from a single incident at the Adult Correctional Institutions ("ACI"). The incident occurred on May 6, 2014, when Plaintiff and another inmate in maximum security were fighting. Claiming that he should have been booked only for fighting, Plaintiff alleges that Correctional Officer Leach wrongly charged him with three infractions, two for disobedience (one for resisting attempts to restrain him and one for refusing the order to stop fighting) and one for violence (the fight itself). Plaintiff relies on ACI policy,  which provides that a single incident usually should be charged as a single infraction. He sues Lieutenant Oden for finding him guilty and punishing him for all three infractions when he should have been punished only for one. He appealed the guilty findings, and alleges that his appeal was wrongfully denied by Warden Kettle. As a consequence, Plaintiff states that he was in segregation for "an extra (30) days or more illegally." ECF No. 1-1 at 2 (underscoring in original). He also claims that violations of the policy are generally causing enhanced punishment and loss of earned "good time, " though he does not specify whether he suffered the loss of good time credit. Finally, Plaintiff names Director A.T. Wall, asserting that Director Wall is aware "that the policy he wrote is not being followed" and is "deliberately indifferent" to the violations.
Plaintiff seeks $10, 000 from each Defendant in compensatory damages, $5, 000 from each Defendant in punitive damages and restoration of thirty days of good time credit.
II. STANDARD OF REVIEW
The legal standard for dismissing a complaint for failure to state a claim pursuant to §§ 1915(e)(2) and 1915A is the same used when ruling on a Rule 12(b)(6) motion to dismiss. Hodge v. Murphy, 808 F.Supp.2d 405, 408 (D.R.I. 2011). To survive a motion to dismiss, a complaint must contain sufficient factual allegations to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Sections 1915 and 1915A also require dismissal if the Court finds that the case is frivolous or seeks damages from a defendant with immunity. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. A viable complaint must also satisfy Fed.R.Civ.P. 8(a), which requires a plaintiff to include "a short and plain statement of the grounds for the court's jurisdiction... and of the claim showing that the pleader is entitled to relief, " as well as Fed.R.Civ.P. 10(a)-(b), which requires a caption and claims set out in numbered paragraphs, each limited to a single set of circumstances.
When a pro se prisoner complaint fails to state a claim but is not frivolous, the First Circuit has cautioned against sua sponte dismissal with prejudice "without affording plaintiff notice and an opportunity to be heard." Street v. Fair, 918 F.2d 269, 272 (1st Cir. 1990) (per curiam). Instead, district courts are advised to give plaintiffs "some form of notice and an opportunity to cure the deficiencies in the complaint." Brown v. Rhode Island, 511 F.Appx. 4, 5 (1st Cir. 2013) (per curiam) (vacating dismissal under §§ 1915(e) and 1915A).
Plaintiff's complaint, as currently drafted, fails to state a claim.
A. Disciplinary Segregation for Thirty Days Does Not Implicate a Viable Liberty Interest
"Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285 (1948). Discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law. Sandin v. Conner, 515 U.S. 472, 485-86 (1995) (disciplinary segregation, without more, does not implicate protected liberty interest so as to entitle prisoner to procedural protections of Due Process clause). Only changes in prison conditions resulting from discipline imposed without appropriate due process that constitute "atypical" and "significant" hardships sufficient to give rise to the loss of a liberty interest are potentially actionable under § 1983. Id. at 486; Hewes v. R.I. Dep't of Corrs., No. C.A. 00-205 S, 2003 WL 751027, at *2 (D.R.I. Feb. 11, 2003) (quoting Sandin, 515 U.S. at 484); see also Ky. Dep't of Corrs. v. Thompson, 490 U.S. 454, 460 (1989) (prisoner must establish liberty interest to allege due process violation).
To state a claim, a complaint must plausibly allege the loss of a liberty interest based on the imposition of conditions that are atypical and inflict a significant hardship. Hewes, 2003 WL 751027, at *2-3 (where segregation did not constitute atypical and significant hardship, no liberty interest implicated and § 1983 action dismissed). While courts differ over whether some length of disciplinary segregation may become so long as to be atypical and a significant hardship, all of the cases that follow Sandin concur that an allegation of disciplinary segregation alone is insufficient to implicate a liberty interest. See, e.g., Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000) (segregation for 305 days or more implicates a liberty interest); Carson v. Johnson, 112 F.3d 818, 821 (5th Cir. 1997) (disciplinary segregation never implicates a liberty interest unless it inevitably affects the duration of the sentence); Marino v. Klages, 973 F.Supp. 275, 278 (N.D.N.Y. 1997) (three hundred days in disciplinary isolation is not atypical or significant deprivation as to trigger due process protections). Cf. Skinner v. Cunningham, 430 F.3d 483, 486-87 (1st Cir. 2005) (forty days of administrative segregation following prison fight resulting in death does not constitute "atypical and significant hardship").
Pursuant to Sandin and its progeny, to state a viable claim, Plaintiff must plead more than placement in disciplinary segregation for "an extra (30) days or more." See Cook v. Wall, No. 09-169S, 2013 WL 773444, at *1-2 (D.R.I. Feb. 28, 2013) (liberty interest implicated where allegations in aggregate show prisoner placed in disciplinary segregation without hearing or evidence and with improper notice of disciplinary decision). He must plausibly allege that his punishment not only violated ACI policy,  but also inflicted punishment that is atypical and imposes a significant hardship. Lacking such an allegation, this complaint does not adequately plead the loss of a liberty interest and must be dismissed for failure to state a claim. See Lekas v. Briley, 405 F.3d 602, 613 (7th Cir. 2005) (disciplinary segregation alone does not necessarily produce ...