United States District Court, D. Rhode Island
WILLIAM E. SMITH, CHIEF JUDGE.
Judge Patricia A. Sullivan filed a Report and Recommendation
(“R&R”) on July 25, 2017 (ECF No. 8)
recommending that the Court provisionally grant
Plaintiff's Motion for Leave to Proceed in forma pauperis
(“IFP Application”) (ECF No. 2) but that
Plaintiff's Amended Complaint (ECF No. 6) fails to state
a claim upon which relief may be granted. The Magistrate
Judge also recommended providing Plaintiff with thirty days
to file a second amended complaint that corrects the
deficiencies in the amended complaint as outlined in the
party has filed an objection to the R&R. After carefully
reviewing Plaintiff's Amended Complaint, his IFP
Application and the R&R, this Court ACCEPTS the R&R
in its entirety and adopts the reasoning set forth therein.
Plaintiff's IFP Application (ECF No. 2) is GRANTED.
Plaintiff has thirty days from the date of this Order to file
a second amended complaint that cures the deficiencies
described in the R&R. If the second amended complaint is
deficient or if Plaintiff fails to file a second amended
complaint within thirty days, then the Amended Complaint (ECF
No. 6) shall be summarily dismissed and the case shall be
PATRICIA A. SULLIVAN, United States Magistrate Judge.
March 22, 2017, Plaintiff Nemiah Armstrong filed pro
se a complaint, along with a motion for leave to proceed
in forma pauperis (“IFP”) (ECF No. 2)
and a motion to appoint counsel (ECF No. 3). Both motions
have been referred to me pursuant to 28 U.S.C. §
636(b)(1). Plaintiff has now resolved the confusion caused by
his failure to include the page that stated the factual
allegations supporting his claim by filing what the Court has
labeled as his “Amended Complaint.” ECF No. 6.
Accordingly, these motion are now ripe for decision.
unquestionably qualifies for IFP status; thus, if this case
survives screening, I recommend that the IFP motion be
granted. However, the IFP motion renders this case subject to
preliminary screening pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii). Having reviewed the Amended Complaint with
the liberality required in any case with a pro se
plaintiff, Hughes v. Rowe, 449 U.S. 5, 9 (1980);
Haines v. Kerner, 404 U.S. 519, 520-21 (1972)
(per curiam), I recommend that it be summarily
dismissed without prejudice for failing to state a claim on
which relief may be granted, after Plaintiff has been
afforded an opportunity to amend. In light of this
recommendation, I also recommend that Plaintiff's motion
to appoint counsel be denied as moot.
IFP application, Plaintiff alleges that he is a disabled
individual, while the Amended Complaint provides that he
lives in an unspecified “housing community” and
that he was moved (“evicted”) to a different
housing unit that was “not appropriate for [his]
medical disability.” ECF No. 6 at 7. However, nothing
that he has filed includes any factual allegations from which
the Court might discern the nature of the disability or
whether it plausibly could establish the foundation for a
colorable claim. Nor does the Amended Complaint provide any
facts at all to establish that he was entitled to and denied
an accommodation by a federally funded housing authority or
by a landlord legally obliged to make such accommodations.
Nor does it provide any plausible facts establishing how the
named defendants might be legally responsible for the denial
of an accommodation beyond the vague assertion that they were
attachments to the Amended Complaint suggest that Plaintiff
may already have initiated this same claim with the
assistance of counsel, but then abandoned it, in that an
attached letter establishes that Plaintiff did obtain legal
assistance culminating in January 2016 from Rhode Island
Legal Services in connection with a “grievance hearing
at the Woonsocket Housing Authority.” ECF No. 6 at 10.
However, that engagement ended when Plaintiff advised his
attorney that he did not wish to attend a “second or
continued” hearing. Id. Whether this failure
to appear is fatal to the housing-based claim Plaintiff has
tried to include in his Amended Complaint is impossible to
principal focus of the Amended Complaint is an incident in
2004, during which Plaintiff alleges that he was
“brutally attacked and beaten” by police
officers, one of whom is named as a defendant in this case,
Mr. Roger Byron. ECF No. 6 at 7. Any claim based on this
incident appears, on the face of the Amended Complaint, to
border on frivolous in that it is doomed, potentially by the
doctrine of claim preclusion, and certainly by any applicable
statute of limitations. While the pleading vaguely asserts
that the case “was taken to court, ” but he could
not afford to keep his lawyer and dropped the case
“after there was a charge of $6, 000 . . . and there
were no consequences for those individuals, ” ECF No. 6
at 7, the attachments to the Amended Complaint tell a
somewhat clearer and different story. It appears that
Plaintiff was charged with resisting arrest in 2004 but the
charge was dismissed and the record of it expunged.
Id. at 14, 16. However, Plaintiff's civil action
arising from the incident, brought with the assistance of
counsel, was unsuccessful in that an award of $5435 in
attorney's fees was made in favor of the defendants and,
when Plaintiff failed to appear to explain why he had not
paid this fee award, his case was dismissed and his
attorney's motion to withdraw was approved by the court.
ECF No. 6 at 15. The Amended Complaint alleges that it seeks
to reassert these judicially terminated claims from 2004
against Mr. Byron. It is unclear whether Plaintiff has ever
paid the amount required by the order of the state court in
2004, including whether it is a debt is still owed to Mr.
third focus of the Amended Complaint is a vague and
conclusory catalog of the alleged conduct of the two
defendants. Plaintiff alleges that he has lived in “the
same housing community” all his life and had no
problems until both defendants - the same Mr. Byron, who is
claimed to have participated in the 2004 incident, as well as
Mr. Robert Moroe, who does not appear to be accused of having
been involved in the 2004 incident - started “working
there” in unspecified positions. ECF No. 6 at 7.
Against Mr. Moroe, the Amended Complaint alleges that he has
used “fo[u]l language, ”
“stalk[ed]/film[ed]” Plaintiff, harassed and
threatened to sue the agency where Plaintiff volunteers,
asked for Plaintiff's personal information, had
Plaintiff's car towed, wrote a letter that falsely
claimed that Plaintiff's son could not visit, and
defamed, embarrassed and humiliated Plaintiff. Id.
Against Mr. Byron, aside from the injury arising from the
2004 incident, the Amended Complaint alleges that he arranged
to have Plaintiff's car towed, called Plaintiff
“racial slurs, ” “had [Plaintiff]
evicted” (apparently from one unit to another that
Plaintiff claims is unsuited to his disability) and sat in
front of Plaintiff's house on March 6 of an unspecified
year, which Plaintiff found to be intimidating. Id.
The Amended Complaint contains no plausible facts permitting
the inference that this conduct is actionable or that either
of the named defendants is somehow legally responsible.
on these allegations, Plaintiff seeks to “finally
attain support and validation that these have been acts of
racism and harassment.” ECF No. 6 at 7. He also seeks
monetary damages for pain and suffering and defamation. He
asks the Court to provide a remedy that acknowledges the
falsity of Defendants' statement that he (Plaintiff) is
“a liar and a man on a witch hunt.” Id.
To invoke federal question jurisdiction,  on his civil
cover sheet, Plaintiff wrote “1983, ” ECF No. 6
at 24, presumably reflecting his intent to rely on 42 U.S.C.
§ 1983, although the Amended Complaint does not refer to
any claims grounded in the United States Constitution. In the
body of the Amended ...