United States District Court, D. Rhode Island
JOSE A. RODRIGUEZ, JR., Plaintiff,
COURTNEY E. HAWKINS, in her official capacity as Director of the Rhode Island Department of Human Services, Defendant.
WILLIAM E. SMITH CHIEF JUDGE.
Report and Recommendation (“R&R”) (ECF No. 3)
on May 16, 2018, Magistrate Judge Lincoln D. Almond
recommended that the Court grant Plaintiff's Motion To
Proceed in Forma Pauperis (ECF No. 2) and dismiss
Plaintiff's Complaint (ECF No. 1) pursuant to 28 U.S.C.
§§ 1915(e)(2)(B). Having reviewed the R&R and
relevant filings, and having heard no objections, the Court
accepts the R&R and adopts its recommendations and
reasoning. The Court, therefore, GRANTS Plaintiff's
Motion To Proceed in Forma Pauperis (ECF No. 2) and DISMISSES
Plaintiff's Complaint (ECF No. 1), with prejudice,
pursuant to 28 U.S.C. § 1915(e).
AND RECOMMENDATION FOR SUMMARY DISMISSAL PURSUANT TO 28
U.S.C. § 1915(e)
Lincoln D. Almond, United States Magistrate Judge
before me for determination is Plaintiff's Application to
Proceed In Forma Pauperis (“IFP”) (Document No.
2) pursuant to 28 U.S.C. § 1915. On May 4, 2018,
Plaintiff Jose A. Rodriguez, Jr. filed this pro se
“Class Action” against Courtney E. Hawkins, in
her official capacity as Director of the Rhode Island
Department of Human Services. Plaintiff's Complaint was
accompanied by an Application to Proceed IFP without being
required to prepay costs or fees, including the $400.00 civil
case filing fee. After reviewing Plaintiff's Application
signed under penalty of perjury, I conclude that Plaintiff is
unable to pay fees and costs in this matter and thus,
Plaintiff's Application to Proceed IFP (Document No. 2)
granted IFP status, this Court is required by statute to
further review the Plaintiff's Complaint sua
sponte under 28 U.S.C. § 1915(e)(2) and to dismiss
this suit if it is “frivolous or malicious, ”
“fails to state a claim on which relief may be
granted” or “seeks monetary relief against a
defendant who is immune from such relief.” For the
reasons discussed below, I recommend that Plaintiff's
Complaint be DISMISSED.
1915 of Title 28 requires a federal court to dismiss an
action brought thereunder if the court determines that the
action is frivolous, fails to state a claim or seeks damages
from a defendant with immunity. 28 U.S.C. §
1915(e)(2)(B). The standard for dismissal of an action taken
IFP is identical to the standard for dismissal on a motion to
dismiss brought under Fed.R.Civ.P. 12(b)(6). See Fridman
v. City of N.Y., 195 F.Supp.2d 534, 538 (S.D.N.Y. 2002).
In other words, the court “should not grant the motion
unless it appears to a certainty that the plaintiff would be
unable to recover under any set of facts.” Roma
Constr. Co. v. aRusso, 96 F.3d 566, 569 (1st
Cir. 1996). Section 1915 also requires dismissal if the court
is satisfied that the action is “frivolous.” 28
U.S.C. § 1915(e)(2)(B)(I). A claim “is frivolous
where it lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 325
(1989). The First Circuit has held that the affirmative
defense of the statute of limitations may justify dismissal
under Section 1915, see Street v. Vose, 936 F.2d 38,
39 (1st Cir. 1991), and other courts have upheld
dismissals under Section 1915 because of other affirmative
defenses appearing on the face of a complaint. See
e.g., Kimble v. Beckner, 806 F.2d 1256, 1257
(5th Cir. 1986).
recommend that Plaintiff's Complaint be summarily
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). In
making this recommendation, I have taken all of the
allegations in Plaintiff's Complaint as true and have
drawn all reasonable inferences in his favor. Estelle v.
Gamble, 429 U.S. 97 (1976). In addition, I have
liberally reviewed Plaintiff's allegations and legal
claims since they have been put forth by a pro se
litigant. See Haines v. Kerner, 404 U.S. 519,
520-521 (1972). However, even applying these liberal
standards of review to Plaintiff's Complaint, dismissal
Class Action Complaint alleges that the State of Rhode Island
is failing to process Supplemental Nutrition Assistance
Program (“SNAP”) applications within the time
frame mandated by federal law. Plaintiff's pro
se handwritten Complaint is substantially copied from
the Class Action Complaint pending before this Court as
Gemmell v. Affigne, C.A. No. 1:16-CV-00650-WES. The
Gemmell case was filed on December 8, 2016 by
experienced class counsel from the National Center for Law
and Economic Justice. On February 28, 2017, Chief Judge Smith
entered a Stipulation and Order of Settlement resolving the
Gemmell case and obligating the Defendant to comply
with the timely processing requirements for food stamps and
to accurately report this processing to Plaintiffs.
See ECF Doc. No. 24 at p. 1 in C.A. No.
1:16-CV-00650-WES. Compliance with the Order of Settlement in
Gemmell is currently under the active supervision of
a Court-appointed Special Master. Plaintiff has cited no
legal grounds to reopen or relitigate the class allegations
made and settled in the Gemmell case in this new
recommend that Plaintiff's attempted “knock
off” class action lawsuit be dismissed for two reasons.
First, as stated, it is completely duplicative of the relief
sought and the Special Master's ongoing efforts in the
Gemmell case. Second, Plaintiff may not pursue a
Class Action Complaint as a pro se litigant. The law
is clear that a pro se plaintiff cannot adequately
represent and protect the interests of a Rule 23 class of
litigants. See Harris v. Perry, No. 15-222-ML, 2015
WL 4879042 at *4 (D.R.I. July 15, 2015) (citing Young v.
Wall, 228 F.R.D. 411, 412 (D.R.I. 2005)). Furthermore, a
pro se plaintiff's ability to sue for anyone
other than himself is expressly prohibited by the Local Rules
of this Court. See D.R.I. Local ...