United States District Court, D. Rhode Island
GERRIT H.J. MUSTERD, Plaintiff,
RHODE ISLAND DEPARTMENT OF HEALTH, Defendant.
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendants' 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 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),
Court granted Defendants' first motion to dismiss (ECF
No. 13) and provided Plaintiff with thirty days to amend.
Text Order of Nov. 16, 2017.
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relevant cases because the ACI law library is out of date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.
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.
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. He requested compensatory damages of
$100, 000 and punitive damages of $100, 000. Id. at
response to Defendants' first motion to dismiss, the
Court reviewed Plaintiff's complaint with the liberality
required for a pro se plaintiff,  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.
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.
Standard of Review
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.
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.
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 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 ...