Musterd v. Rhode Island Department of Health

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Defendants'^[1] second motion to dismiss (ECF No. 40) Plaintiff's complaint. ECF No. 38. Plaintiff, a pro se litigant, is an inmate at the Rhode Island Adult Correctional Institutions (“ACI”), where he is serving two life sentences and a ten-year sentence (all consecutive) for carrying out a murder for hire in 2009. Plaintiff's original complaint (ECF No. 1) was based on his acceptance of a proffered chicken pox vaccine at the ACI in 2016; he claims he relied on inaccurate information provided by DOH employees about the vaccine's ingredients, causing him to ingest matter that is haram^[2] for him as an adherent to the tenets of Islam. Based on a report and recommendation (“R”) issued on August 29, 2017 (ECF No. 24), ^[3] the Court granted Defendants' first motion to dismiss (ECF No. 13) and provided Plaintiff with thirty days to amend. Text Order of Nov. 16, 2017.

         After filing numerous letters and motions seeking more time based principally on his struggle to get access to copies of relevant cases because the ACI law library is out of date (ECF Nos. 29, 32, 33, 34, 35, 36), Plaintiff filed his “Attempt for an Amended Complaint.” This pleading, which the Court has treated (and I refer to) as his “amended complaint, ” states his intent to add claims based on the alleged negligence of a DOH employee, motivated, Plaintiff claims, by Islamophobia, in providing inaccurate information in response to questions posed by prisoners at an information session about the vaccine. ECF No. 38. After the Court accepted this filing as the amended complaint (ECF No. 38), Defendants followed with a renewed motion to dismiss. ECF No. 40.

         The amended complaint still fails to make any claim of constitutional dimensions or to state a viable claim under the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”). Moreover, focusing on Plaintiff's new claim of negligence, this Court lacks subject matter jurisdiction over such a claim, which is based on state, not federal, law, both (1) because it names a state agency and its officials (acting in their official capacity), which not only defeats diversity jurisdiction pursuant to 28 U.S.C. § 1332(a), but also is prohibited by the Eleventh Amendment; and (2) because, even if the State and its officials (acting in their official capacity) were dismissed, there is an insufficient amount in controversy for the Court to have diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). For these reasons, I recommend that Defendants' motion to dismiss be granted. Nevertheless, mindful of Plaintiff's frustration with the ACI law library, I also direct Defendants' counsel to take steps to ensure that Plaintiff has access to relevant cases well before his objection to this report and recommendation is due.

         I. Background^[4]

         Plaintiff alleges that he is a “Sunni/Orthodox” Muslim, who understands the strictures of his religion to forbid the ingestion of certain “animal-by-products/enzymes.” ECF No. 1 at 5, 16. Following an outbreak of chicken pox at the ACI, two DOH employees visited the prison on May 30, 2016, to educate inmates about the vaccine. Id. at 5. During a group session, Plaintiff asked whether the vaccine contained animal by-products; contrary to information DOH had posted on its website, he was assured that the vaccine was egg-based. Id. at 13-14. Based on this inaccurate information, on June 2, Plaintiff opted, along with many (but not all) other inmates, to receive the vaccine; several other Muslim prisoners declined. Id. at 5. Subsequently, Plaintiff learned from his nephew, who had reviewed the DOH website, that the vaccine contained “Gelatin and Fetal Bovine Serum, ” which his religion forbids him to “put in his body.” Id. at 5, 15. Based on these facts, the original complaint claimed violations of Plaintiff's rights under the First Amendment, the Eighth Amendment and the Religious Freedom Restoration Act, 43 U.S.C. § 2000bb-1.^[5] He requested compensatory damages of $100, 000 and punitive damages of $100, 000. Id. at 3, 18.

         In response to Defendants' first motion to dismiss, the Court reviewed Plaintiff's complaint with the liberality required for a pro se plaintiff, ^[6] acknowledged the seriousness of Plaintiff's religious scruples, but held that what appears to be a troublingly negligent statement made by one DOH employee neither gives rise to viable constitutional claims under § 1983 nor does it trigger a claim under RLUIPA. R at 7-11. The R was adopted by the District Court by text order dated November 16, 2017, but afforded Plaintiff leave to amend.

         After several extensions, Plaintiff indicated by a timely letter to the Court that he wanted to amend his complaint. ECF No. 37. The letter was docketed as his amended complaint. ECF No. 38. In this amended complaint, Plaintiff explains that the “situation . . . is already known to this court.” ECF No. 38 at 1. He states that he would like to add a negligence claim “on behalf of the employees of the R.I. Dept. of Health, ” whose conduct he alleges was deliberate and caused by “Islamophobia, ” although he provides no facts to support the claim. Id. at 1-2. He reiterates his lament that he has no access to case law because the ACI law library's collection is limited and because he is required to pay for copies of more recent cases. Id. at 2.

         II. Standard of Review

         Defendants move to dismiss Plaintiff's amended complaint pursuant to Fed. R. Civ. P 12(b)(6) for failure to state a claim upon which relief may be granted. In considering such a motion, the court must accept as true all allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996). The United States Supreme Court has stated the standard as follows: “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007). After Twombly, the Supreme Court further refined its requirements in Ashcroft v. Iqbal:

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. 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 plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.

556 U.S. 662, 678 (2009) (internal citations and quotations omitted). Because Plaintiff is representing himself, and is confronting obstacles posed by his incarceration, it is proper for the Court to review his claims with the utmost leniency. Erickson, 551 U.S. at 94.

         III. Analysis

         Defendants' renewed motion to dismiss (ECF No. 40) argues that Plaintiff's amended complaint, which they analyze in isolation from his other filings, “does not assist in ascertaining what claim or claims are being alleged against” any of the Defendants, in violation of Fed.R.Civ.P. Rules 8, 10 and 12. While Defendants are right that the amended complaint, little more than a letter stating the intent to add a claim of intentional negligence^[7] based on Islamophobia, does not come close to the standard set by these Rules, Plaintiff's pro se status requires the Court to look past that deficit. Based on Plaintiff's statement that he wants to add claims for negligence animated by Islamophobia ...