United States District Court, D. Rhode Island
DEAVEN E. TUCKER, SR., Plaintiff,
NANCY BAILEY, individually and in her official capacity as Assistant Director of Prison Operations of RIDOC, et al., Defendants.
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
the Court is Magistrate Judge Sullivan's Report and
Recommendation (“R&R”) (ECF No. 6) recommending
that the Court (1) dismiss Plaintiff's Complaint (ECF No.
1) with prejudice because it is barred by the applicable
statute of limitations; and (2) deny as moot Plaintiff's
Motion To Proceed In Forma Pauperis (ECF No. 2).
Objection to the R&R (ECF No. 10), while acknowledging that
the Court may sua sponte dismiss a complaint for an
“apparent and insurmountable” “temporal
hurdle, ” Plaintiff faults Magistrate Judge Sullivan
for “not consider[ing] or provid[ing] any equitable
tolling exception analysis.” (Br. in Supp. of Pl.'s
Obj. to R. & R. 3-4, ECF No. 10 (quoting Johnson v.
Rodriguez, 943 F.2d 104, 108 (1st Cir. 2001)). Plaintiff
suggests that Magistrate Judge Sullivan should have applied
equitable-tolling principles because a liberal reading of his
Complaint, which describes his conditions of confinement,
“support[s] [a] strong argument of an inescapable
disability, irremediable lack of information, and/or other
circumstances beyond his control that prevented him to sue,
which made him loathe to bring suit against his
adversaries.” (Id. at 4-6.) Plaintiff further
avers that Magistrate Judge Sullivan's R&R should be
rejected and the Court should equitably toll the limitations
period, or alternatively provide Plaintiff an opportunity to
amend his Complaint, because he “was [not] at all times
capable of protecting [his] legal rights” based on his
conditions of confinement, including daily supervision and
control by Defendants. (Id. at 6-7 (quoting
Rivers v. Am. Commerce Ins. Co., 836 A.2d 200, 204
Court reviews de novo a properly objected to R&R on a
dispositive matter. See 28 U.S.C. § 636(b)(1);
see also Jasty v. Wright Med. Tech., Inc., 528 F.3d
28, 33 (1st Cir. 2008).
initial matter, Plaintiff is simply incorrect when he
surmises that Magistrate Judge Sullivan did “not
consider or provide any equitable tolling analysis.”
(See Br. in Supp. of Pl.'s Obj. to R. & R. 4;
see also R. & R. 13 (“And as far as the Court
is able to divine, no other equitable exceptions arguably
would apply to the circumstances of this Complaint.”)).
In any event, it would be a fruitless academic exercise to
scrutinize whether equitable-tolling principles apply here
when the circumstances surrounding Plaintiff's Complaint
leave no question they do not. In other words, the
circumstances of Plaintiff's Complaint make clear that
Plaintiff was anything but “loathe to bring suit
against adversaries to whose daily supervision and control
[he] remain[ed] subject.” See Hardin v.
Straub, 490 U.S. 536, 544 (1989).
factual summation sheds light on why Plaintiff cannot take
refuge in equitable-tolling principles to avoid
statute-of-limitations-imposed defeat. Importantly, and
as Magistrate Judge Sullivan highlights in her R&R, on
October 12, 2010, Plaintiff was transferred from the Rhode
Island Adult Correctional Institutions (“ACI”) to
a prison in Connecticut. See Mem. of Law in Supp. of
Pl's Mot. For Extension of Time 2-3, Tucker v.
Wall, No. 07-406ML (D.R.I. Nov. 22, 2010), ECF No. 105.
The final events set forth in the Complaint relevant to
Plaintiff's 42 U.S.C. § 1983 and § 1985
allegations occurred in June and March 2010, respectively.
(See Compl. ¶¶ 91-94, 97.) Thus, at the
latest, to toll the applicable three-year statute of
limitations, Plaintiff must have filed his Complaint within
three years from those events. Instead, Plaintiff filed his
Complaint on May 12, 2017, nearly seven years later.
(See Compl.) But he posits that his confinement
conditions, presumably at the ACI, support a “strong
argument of an inescapable disability, irremediable lack of
information, and/or other circumstances beyond his control
that prevented him to sue.” (Br. in Supp. of Pl.'s
Obj. to R. & R. 5.) The Court disagrees.
Plaintiff's argument that his confinement conditions at
the ACI suggest that the “irremediable lack of
information” or that “other circumstances beyond
his control” blocked his ability to bring suit,
(see id.), is belied by, among other things, the
fact that he initiated a separate suit against many of these
same defendants on November 1, 2007, during the very period
of confinement that he challenges under § 1983. That is,
the “numerous unannounced segregation placements,
transfers, retaliation, depriv[ation] of legal work [and]
property, access to paper [and] pens, planting evidence,
[and] denied legal calls” did not impede
Plaintiff's ability to bring suit in that case.
(Id. at 5.) Moreover, even assuming without this
context that Plaintiff's ACI conditions were so
burdensome and obstructive as to strip him of his ability to
sue, those conditions lapsed when Plaintiff departed the ACI
for an out-of-state prison on October 12, 2010, at which
point Plaintiff could have filed his Complaint and tolled the
statute of limitations for more than two years. If there was
any doubt that Plaintiff's circumstances do not warrant
equitable tolling, on February 1, 2012, Plaintiff filed a
second lawsuit while confined in Connecticut that factually
mirrors his present Complaint. See Compl.,
Tucker v. Bailey, No. 12-62S (D.R.I. Feb. 1, 2012),
ECF No. 1. Thus, Plaintiff's suggestion that Magistrate
Judge Sullivan erred in failing to recommend that
Plaintiff's claims be equitably tolled because he was
impeded from protecting his legal rights is belied by the
facts. Plaintiff's own conduct in related proceedings, of
which the Court takes judicial notice, leaves no question
that this case does not fit within the “‘narrowly
circumscribed factual situations' in which the applicable
statute of limitations will be tolled.”
Rivers, 836 A.2d at 204 (quoting Renaud v.
Sigma-Aldrich Corp., 662 A.2d 711, 714-15 (R.I. 1995)).
the Court ACCEPTS the R&R (ECF No. 6) in its entirety and
adopts the recommendations and reasoning set forth therein.
Thus, Plaintiff's Complaint (ECF No. 1) is DISMISSED with
prejudice. Plaintiff's Motion To Proceed In Forma
Pauperis (ECF No. 2) is DENIED as moot.
PATRICIA A. SULLIVAN, United States Magistrate Judge.
October 12, 2010, Plaintiff Deaven E. Tucker, Sr., has been
incarcerated in Connecticut, where he is serving multiple
life sentences imposed by the State of Rhode Island. On May
12, 2017, he filed a pro se Sections 1983/1985 civil
rights Complaint (“Complaint”) pertaining to
events that occurred when he was incarcerated at the Rhode
Island Adult Correctional Institutions (“ACI”),
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, including
the prisoner trust fund account statement filed on July 14,
2017 (ECF No. 4), 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
on my review of the operative pleading,  I find that
various of the claims are tainted by an array of legal
deficiencies, including the preclusive effect of the doctrine
of res judicata, as well as the principles
articulated in Will v. Michigan Dep't of State
Police, 491 U.S. 58, 71 (1989), and Heck v.
Humphrey, 512 U.S. 477, 478, 486-87 (1994). However,
this report and recommendation is focused on the overarching
and fatal flaw that requires the defenestration of all of the
claims - that they are barred by the applicable statute of
limitations. Because the allegations leave no doubt that
every claim accrued six or more years prior to the filing of
the Complaint and that the “temporal hurdle [is] both
apparent and insurmountable, ” Johnson v.
Rodriguez, 943 F.2d 104, 108 (1st Cir. 1991), I
recommend that the Complaint be dismissed as frivolous and
for failure to state a claim pursuant to 28 U.S.C. §
1915(e)(2)(B)(i) & (ii). Because I find the Complaint to be
frivolous, I do not recommend that Plaintiff be afforded
leave to amend.
handwritten, seventy-three page, one-hundred paragraph
pleading arises under 42 U.S.C. §§ 1983 and 1985.
It is based on alleged violations of the First, Fourth,
Sixth, Eighth and Fourteenth Amendments of the United States
Constitution. ECF No. 1 at 70 & ¶¶ 98-100. As
defendants, the caption names twenty-four officials of Rhode
Island Department of Corrections (“RIDOC”), two
state prosecutors, a Pawtucket police detective, an official
of the Rhode Island Department of Special Investigations
Unit, and a United States Marshal; in all, twenty-nine
defendants are listed. ECF No. 1 ¶¶ 4-35. In the
section of the pleading entitled “Parties, ”
thirty-two defendants are identified. All individual
defendants are named in both their individual and official
Complaint's § 1983 allegations are focused on lost
good time credit resulting from trumped-up drug charges in
2001 and 2005; on pretrial and pre-sentencing conditions of
confinement at the ACI, including the allegedly
unconstitutional infliction of retaliatory administrative and
psychiatric segregation during Plaintiff's detention from
December 2006 until May 2010; and on administrative
segregation and the loss of property in the immediate
aftermath of sentencing during the period from 2007 until
June 2010. Plaintiff's § 1985 claim is based on the
factual allegation that RIDOC officials conspired with police
and a prosecutor to steal his legal materials and notes to
use in connection with the prosecution that culminated in the
trial at which Plaintiff was found guilty by a jury on March
16, 2010. See State v. Tucker, 111 A.3d 376, 378
(R.I. 2015). The Complaint asserts that this conspiracy was
for the purpose of depriving him of access to the courts and
to retaliate for the filing of grievances. Without explaining
the factual basis for the allegation, he claims that the
conspirators were motivated by “gender-based”