Pona v. Weeden

          ORDER

          William E. Smith Chief Judge .

         Magistrate 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 with prejudice.

         IT IS SO ORDERED.

         REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, United States Magistrate Judge.

         Pro 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, ^[1] 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.

         Pursuant to Fed.R.Civ.P. 12(b)(6), Defendants^[2] 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.

         As of 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.

         I. BACKGROUND^[3]

         In 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.

         The 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.

         Plaintiff 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.

         Plaintiff 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.

         While 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 ...