United States District Court, D. Rhode Island
REPORT 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 August 6, 2018,
Plaintiff Solomon Gibbs, a state inmate, filed this pro
se Complaint against A.T. Wall, the Director of
Corrections, and an unidentified Correctional Officer
“that sexual misconduct on me.” (ECF Doc. No. 1
at p. 3). 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) is GRANTED.
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 WITH PREJUDICE.
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
alleges that an unidentified Correctional Officer conducted a
retaliatory search and put him and another inmate in a
“sexual position.” He claims that the
Correctional Officer violated some unspecified
“rules” on how to conduct a search. Plaintiff
alleges that he was traumatized by contacting the other
inmate's body, is mentally depressed and feels “gay
Plaintiff alleges absolutely no facts regarding A.T.
Wall's involvement or possible liability, either in his
official or individual capacity, for this incident. Thus,
Plaintiff fails to state any legally viable claims against
Director A.T. Wall.
as to the unidentified John Doe Correctional Officer, the
Court assumes that Plaintiff is asserting a claimed violation
of his Eighth Amendment right to be free from the infliction
of cruel and unusual punishments. In order to plead a viable
Eighth Amendment claim, an inmate must allege facts
demonstrating “unnecessary and wanton infliction of
pain.” Whitley v. Albers, 475 U.S. 312, 319
(1986). The primary inquiry in determining whether a prison
official used unlawful physical force turns on “whether
force was applied in a good faith effort to maintain or
restore discipline or maliciously and sadistically for the
very purpose of causing harm.” Hudson v.
McMillian, 503 U.S. 1, 6, 112 S.Ct. 995, 1000 (1992)
(citations omitted). Again, there is an objective component
of the inquiry, which requires that the injury be
“objectively, sufficiently serious, ” and a
subjective component, which requires the prison official have
a “sufficiently culpable state of mind.” See
Boxer X v. Harris, 437 F.3d 1107, 1111
(11thCir. 2006). “Because sexual abuse by a
corrections officer may constitute serious harm inflicted by
an officer with a sufficiently culpable state of mind,
allegations of such abuse are cognizable as Eighth Amendment
claims.” Boddie v. Schnieder, 105 F.3d 857,
861 (2nd Cir. 1997). However, “[n]ot every
case of inappropriate touching will meet the two-prong
test.” Roten v. McDonald, No. 08-081, 2009 WL
4348367, at *4 (D. Del. Nov. 30, 2009). Assaults that result
in only de minimis harm do not rise to the level of
constitutional infractions unless the behavior of the officer
in question can be deemed “'repugnant to the
conscience of mankind.'” Hudson, 503 U.S.
at 9-10 (internal citations omitted).
the allegations of sexual abuse in the Complaint, while
potentially describing inappropriate conduct, fail to rise to
the level of an Eighth Amendment violation. Plaintiff claims
he was emotionally injured by being placed in an embarrassing
position and by simply coming into contact with another male
inmate's body. The claim parallels conduct in cases which
Courts have found insufficient to state a constitutional
violation. See, e.g., Washington v.
Harris, 186 Fed.Appx. 865, 866 (11th Cir.
2006) (unpublished) (inmate's allegations that he
suffered momentary pain, “psychological injury, ”
embarrassment, humiliation, and fear after he was subjected
to officer's offensive and unwanted touching did not rise
to the level of constitutional harms); Jackson v.
Madery, 158 Fed.Appx. 656, 661-662 (6th Cir.
2005) (unpublished) (allegation of rubbing and grabbing of
prisoner's buttocks in a degrading manner did not amount
to an Eighth Amendment violation); Joseph v. U.S. Fed.
Bureau of Prisons, 232 F.3d 901, at *1-2
(10th Cir. Oct. 16, 2000) (unpublished)
(allegations that prison official “touched [plaintiff]
several times in a suggestive manner and exposed her breasts
to him” were not “objectively, sufficiently
serious” to state an Eighth Amendment claim);
Berryhill v. Schriro, 137 F.3d 1073, 1076
(8th Cir. 1998) (touching of inmate's buttocks
by prison employees, though inappropriate and sanctioned by
prison, does not violate the Eighth Amendment);
Boddie, 105 F.3d at 861 (verbal harassment and
fondling of inmate's genitals by prison guard, though
despicable, not sufficiently serious to establish Eighth
Amendment violation). Accordingly, I recommend that the
Eighth Amendment sexual harassment claim against the John Doe
Correctional Officer be DISMISSED.
to the extent Plaintiff claims that the John Doe Correctional
Officer “broke rules on how to search, and handle a
[sic] inmate with no cloths [sic]” (ECF Doc. No. 1 at
p. 3), he fails to identify the source of the rules or the
nature of the alleged violation of such rules. He fails to
assert any constitutional claims ...