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Armstrong v. Moroe

United States District Court, D. Rhode Island

August 11, 2017

NEMIAH ARMSTRONG, JR., Plaintiff,
v.
ROBERT MOROE and ROGER BYRON, Defendants.

          ORDER

          WILLIAM E. SMITH, CHIEF JUDGE.

         Magistrate 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 R&R.

         Neither 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 terminated.

         IT IS SO ORDERED.

         REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, United States Magistrate Judge.

         On 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.

         Plaintiff 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.

         I. Background

         In his 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.[1] 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 “working there.”

         The 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 say.

         A 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. Byron.

         The 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.

         Based 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, [2] 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 ...


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