United States District Court, D. Rhode Island
William E. Smith Chief Judge .
Judge Patricia A. Sullivan filed a Report and Recommendation
(“R&R”) on February 26, 2018 (ECF No. 33)
recommending that the Court grant with prejudice
Defendants' Motion To Dismiss (ECF No. 23)
Plaintiff's Amended Complaint (ECF No. 22). Plaintiff has
not objected to the R&R. After carefully reviewing the
R&R and the parties' submissions, the Court ACCEPTS
the R&R in its entirety and adopts the reasoning and
recommendations presented therein. Accordingly,
Defendant's Motion To Dismiss (ECF No. 23) is GRANTED
PATRICIA A. SULLIVAN, United States Magistrate Judge.
se plaintiff Charles Pona, a prisoner at Rhode
Island's Adult Correctional Institutions
(“ACI”), operated by the Rhode Island Department
of Corrections (“RIDOC”), has filed an amended
complaint (ECF No. 22) by which he seeks to cure the
deficiencies that resulted in the Court's dismissal in
its entirety of his original complaint (ECF No. 1). Pona
v. Weeden, No. 16-612S, 2017 WL 3279012, at *9 (D.R.I.
June 29, 2017), adopted, 2017 WL 3278874, at *1
(D.R.I. Aug. 1, 2017) (hereinafter “Pona
I”). In the amended complaint, Plaintiff again
challenges the constitutionality under the First, Eighth and
Fourteenth Amendments of segregation imposed on him for
orchestrating a narcotics trafficking operation at the ACI.
This time, he asks the Court to consider the time he spent in
administrative segregation while the narcotics trafficking
was being investigated and the time he spent in
administrative segregation after the disciplinary segregation
term of one year, as reduced,  was completed. ECF No. 22
¶¶ 13-14, 27-28, 30. When both periods of
administrative segregation are added to the period of less
than a year in disciplinary segregation, it amounts to a
total period in close confinement of twenty and a half
months. ECF No. 22 ¶ 31. The amended complaint alleges
that this protracted period is sufficient to trigger a
liberty interest, implicating Plaintiff's due process
rights under the Fourteenth Amendment, as well as that the
process afforded was constitutionally insufficient. ECF No.
22 ¶ 41. He also claims that twenty and a half months in
disciplinary and administrative confinement without
newspapers, personal books or photographs violates his rights
under the First Amendment, as well as that the deprivation of
outdoor exercise for such a long period amounts to cruel and
unusual punishment in violation of the Eighth Amendment. ECF
No. 22 ¶¶ 39-40.
to Fed.R.Civ.P. 12(b)(6), Defendants again have moved to dismiss
(ECF No. 23), arguing that the new allegations remain
insufficient to nudge Plaintiff's claims “across
the line from conceivable to plausible.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 547 (2007). However,
instead of filing a timely opposition, Plaintiff responded
with a flurry of filings asking the Court to order RIDOC to
adopt the protocol of providing ACI inmates with paper copies
of all cases cited in any filing that are not otherwise
readily accessible, including those cited both in RIDOC
briefs and in Court orders and opinions, as well as to extend
his time to object to the motion to dismiss until after he
had been provided with the requested copies of cases. ECF
Nos. 25, 27, 28, 29. Initially, the motion for an extension
was granted so that the motion for copies of cases, which
mirrored a similar request made in other cases by other ACI
inmates, could be resolved in an orderly way. Text Order of
October 11, 2017. After more than two months passed without
resolution of the copies-of-cases issue, to move this case
forward, the Court entered an Order “with no
precedential impact on further proceedings in this case or in
any other case and without addressing the substance of
Plaintiff's argument regarding entitlement to copies of
cases, ” directing RIDOC to supply Plaintiff with
copies of the requested cases. Text Order of Jan. 18, 2018.
The Order further directed Plaintiff to file his opposition
to the motion to dismiss on or before February 9, 2018.
this writing, Plaintiff has filed nothing. After affording
Plaintiff two extra weeks, this report and recommendation is
issuing today. In it, I find that the amended complaint still
fails to state a claim and now recommend that the case be
dismissed with prejudice.
setting out the pertinent background, the reader's
familiarity with Pona I is assumed. Briefly,
Plaintiff is serving two consecutive life sentences for the
1999 murder of seventeen-year-old Hector Feliciano and the
2000 murder of fifteen-year-old Jennifer Rivera; the latter
was shot while skipping rope because she was about to testify
against Plaintiff during his trial for the Feliciano murder.
State v. Pona, 66 A.3d 454 (R.I. 2013); State v.
Pona, 948 A.2d 941 (R.I. 2008); State v. Pona,
926 A.2d 592 (R.I. 2007). This case arises from a
disciplinary proceeding against Plaintiff for the infraction
of narcotics trafficking committed while he was housed with
the general population in the “MAX” area of the
ACI. ECF No. 22 ¶¶ 13, 15.
amended complaint alleges that, on April 16, 2014, Plaintiff
was abruptly transferred from “MAX general
population” to the High Security Center
(“HSC”), where he was placed on administrative
segregation status. ECF No. 22 ¶ 13. On May 28, 2014, he
was returned to MAX, but remained on administrative
segregation. ECF No. 22 ¶ 14. On May 30, 2014, he was
given written notice that he was being charged with narcotics
trafficking. ECF No. 22 ¶ 15. At the hearing that
followed on June 3, 2014, Plaintiff pled not guilty; in
response to his request to see any evidence against him, the
hearing officer told Plaintiff that there was no requirement
to disclose any evidence and none was ever provided. ECF No.
22 ¶¶ 16-18. Instead, the hearing officer told
Plaintiff that he was found guilty as charged “based
solely on the report of [the investigator], ” about
which Plaintiff was not told anything. ECF No. 22 ¶ 19.
“Without any evidence whatsoever, ” the hearing
officer found Plaintiff guilty of “Narcotics
Trafficking, ” and sanctioned him to one year of
disciplinary segregation, with one year lost good time
credit; while the amended complaint is not explicit, the
facts permit the inference that the sanction began
immediately. ECF No. 22 ¶ 20. In addition, Plaintiff
alleges that a recommendation was made to
“downgrade” him to HSC status. Id.
appealed immediately, resulting in a second hearing on June
12, 2014. ECF No. 22 ¶¶ 21-23. Again, Plaintiff
pled not guilty and asked to see the evidence; again his
request was denied. Instead, the hearing officer again found
him guilty “without any evidence whatsoever being
presented, ” “nor was he informed of when, where,
what alleged drugs he was charged with trafficking.”
ECF No. 22 ¶ 23. The hearing officer imposed the same
sanctions, as well as the additional consecutive sanction of
no visits for 365 days. ECF No. 22 ¶ 23. A second appeal
was denied on June 24, 2014. ECF No. 22 ¶ 24. Consistent
with RIDOC policy, Defendant Kettle reviewed Plaintiff's
sanctions and upheld them in a decision dated July 18, 2014.
ECF No. 22 ¶ 25. Plaintiff wrote a final appeal letter,
“professing his innocence, ” which was denied on
August 5, 2014. ECF No. 22 ¶ 26.
remained in disciplinary segregation in MAX from June 3,
2014, until January 14, 2015, when he was transferred to
disciplinary segregation in HSC. ECF No. 22 ¶ 27.
Disciplinary segregation ended on April 24, 2015. ECF No. 22
¶ 28. Plaintiff was then transferred to administrative
segregation in HSC, where he remained until he was
transferred back to MAX general population on December 31,
2015. ECF No. 22 ¶ 30. The amended complaint permits the
inference that Plaintiff's placement in HSC was based on
the recommendation referenced in paragraph 20 of the amended
complaint, which, in turn, is linked to the finding that he
was guilty of narcotics trafficking. ECF No. 22 ¶¶
20, 28, 30.
in disciplinary segregation, Plaintiff was required to remain
in his cell for almost twenty-four hours a day, including to
eat all meals in his cell, with only a half-hour of indoor
recreation and a fifteen-minute shower every weekday and no
recreation or showers on weekends. ECF No. 22 ¶ 33. He
was not allowed any visits or phone calls; he was not allowed
to keep in his cell personal books and photographs,
newspapers, magazines, television, radio, or MP3 player; he
was limited to in-door recreation; he was barred from
employment; he was not allowed to participate in any group
activities such as sports or religious services; he was
denied commissary privileges; and he was barred from access
to educational, vocational and rehabilitation programs, the
gym and the law library. ECF No. 22 ¶ 34. Conditions in
administrative segregation were less restrictive. ECF No. 22
¶ 35. Plaintiff was permitted one short phone call per
month and two hours a week in the law library; he was allowed
to listen to his radio; and he could order snacks through the
commissary. Id. The amended complaint contrasts
these extremely restrictive conditions to ...