United States District Court, D. Rhode Island
ELSON M. DE BARROS, Plaintiff,
FROM YOU FLOWER, LLC; ROBYN FONTAINE & DELIVERY COMPANY CAMBRIDGE, MASSACHUSETTS, Defendants.
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.
September 11, 2018, Plaintiff Elson M. De Barros filed a
pro se complaint together with a motion for leave to
proceed in forma pauperis (“IFP”). The
IFP motion, which has been referred to me for determination
pursuant to 28 U.S.C. § 636(b)(1)(A), renders this case
subject to preliminary screening under 28 U.S.C. §
1915(e)(2)(B). See 28 U.S.C. § 636(b)(1)(B).
Based on my review of the IFP application, I conclude that
Plaintiff satisfies the requirements of 28 U.S.C. §
1915(a)(2), and his IFP motion will be granted by a separate
order issued today. After my review of the operative
pleading,  I recommend that, except for
Plaintiff's claims against From You Flower, LLC
(“FYF”), the other Defendants should be dismissed
for Plaintiff's failure to state a claim.
complaint centers on the apparent misdirection of
Plaintiff's order for flowers. ECF No. 1. As alleged, in
July 2016, Plaintiff placed a flower delivery order through
FYF. Id.; ECF No. 1-1. According to Plaintiff, the
flowers and the accompanying note were brought to the wrong
person; he claims that this error somehow caused him to
suffer a variety of damages including the loss of his job,
reputational harm and criminal sanctions. ECF No. 1. The
complaint relies on state law causes of action, including
negligence, defamation and slander. Id. Liberally
construing the complaint, Plaintiff bases his case on
diversity jurisdiction: Plaintiff's domicile is Rhode
Island, he lists FYF at a Connecticut address and he alleges
injury giving rise to an amount in controversy that exceeds
$75, 000. See id.; 28 U.S.C. § 1332. In
addition to FYF, Plaintiff's case caption also names
“Delivery Company Cambridge, Massachusetts” and
“Robyn Fontaine.” However, both of those parties
are completely missing from the allegations stated in the
legal standard for dismissing a complaint for failure to
state a claim pursuant to §§ 1915(e)(2) and 1915A
is the same used when ruling on a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6). Hodge v.
Murphy, 808 F.Supp.2d 405, 408 (D.R.I. 2011). To survive
a motion to dismiss, a complaint must contain sufficient
factual allegations to “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678. Dismissal under Rule
12(b)(6) is necessary “[i]f the factual allegations in
the complaint are too meager, vague, or conclusory to remove
the possibility of relief from the realm of mere
conjecture[.]” Newman v. Lehman Bros. Holdings
Inc., 901 F.3d 19, 25 (1st Cir. 2018).
is well settled that the caption is not considered part of
the pleader's statement of the claim for purposes of
applying the pleading rules.” Uzamere v. United
States, No. CA 13-505 S, 2013 WL 5781216, at *15 (D.R.I.
Oct. 25, 2013), aff'd, (1st Cir. Apr. 11, 2014)
(citing Wright & Miller, 5A Fed. Prac. & Proc. Civ.
§ 1321 (3d ed.)). A person or entity can be named in the
caption without becoming a party to the action. United
States ex rel. Eisenstein v. City of New York, 556 U.S.
928, 935 (2009). In the absence of substantive allegations,
all of the persons and entities who are only named in the
caption are not proper parties in this case. Redondo
Waste Sys., Inc. v. Lopez-Freytes, 659 F.3d 136, 140
(1st Cir. 2011) (defendant named in case caption but not
mentioned in body of complaint “fails the
[Iqbal] plausibility test spectacularly”);
Laurence v. Wall, No. CA 09-427 ML, 2009 WL 4780910,
at *3 (D.R.I. Dec. 10, 2009) (sweeping allegations regarding
conduct of “all defendants” without any
additional facts “fail[s] to provide adequate
specificity to state a claim against these defendants,
especially given plaintiff's misguided choice to name so
Company Cambridge, Massachusetts” and “Robyn
Fontaine” are named in the complaint's caption, but
they are omitted from the body of the pleading and the
attachment. See ECF Nos. 1 & 1-1. This defect in
the complaint means potential claims against them
“fail[ ] the [Iqbal] plausibility test”
because these “captioned defendants [are] not even
mentioned in the body of the complaint.” Redondo
Waste, 659 F.3d at 140. I find all allegations against
Defendants “Delivery Company Cambridge,
Massachusetts” and “Robyn Fontaine” should
be dismissed for failure to state a claim under Rule
12(b)(6). Nevertheless, because Plaintiff may be able to cure
some of the deficiencies identified in this report and
recommendation, I also recommend that Plaintiff be allowed to
file an amended complaint within thirty days of the
Court's adoption of this report and recommendation.
See Brown v. Rhode Island, 511 Fed.Appx. 4, 5-7 (1st
objection to this report and recommendation must be specific
and must be served and filed with the Clerk of the Court
within fourteen (14) days after its service on the objecting
party. See Fed.R.Civ.P. 72(b)(2); DRI LR Cv 72(d).
Failure to file specific objections in a timely manner
constitutes waiver of the right to review by the district
judge and the right to appeal the Court's decision.
See United States v. Lugo Guerrero, 524 F.3d 5, 14
(1st Cir. 2008); Park Motor Mart, Inc. v. Ford Motor
Co., 616 F.2d 603, 605 (1st Cir. 1980).
 Because Plaintiff is pro se,
I liberally construe his filing. See Hughes v. Rowe,
449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S.
519, 520-21 (1972); Instituto de Educacion Universal
Corp. v. U.S. Dep't of Educ., 209 F.3d 18, 23 (1st