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Paiva v. Tyree

United States District Court, D. Rhode Island

November 6, 2018

RICHARD PAIVA
v.
VANCE TYREE

          REPORT AND RECOMMENDATION

          Lincoln D. Almond, United States Magistrate Judge.

         Pending before the Court pursuant to 28 U.S.C. § 636(b)(1)(B) is the Motion to Dismiss Amended Complaint filed by Defendant, in his official capacity only. (ECF Doc. No. 15). Pro se Plaintiff Richard Paiva, a prisoner at the Adult Correctional Institutions (“ACI”), has brought claims pursuant to 42 U.S.C. § 1983 against Defendant Vance Tyree, who is sued in both his individual and official capacity.[1] Defendant moves the Court to dismiss the Amended Complaint because it fails to state a claim upon which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6), because he failed to exhaust administrative remedies and because damages are not available against Defendant in his official capacity. For the reasons that follow, I recommend that the Motion to Dismiss be GRANTED.

         Background

         Plaintiff is an inmate at the ACI in Cranston, Rhode Island. His pro se Amended Complaint, filed on July 10, 2018, alleges violations of 42 U.S.C. § 1983, the First, Fifth and Fourteenth Amendments to the United States Constitution. In brief, Plaintiff alleges he ordered a free newspaper entitled “Under Lock and Key” (“ULK”) that he did not receive. Plaintiff alleges that the publisher of ULK informed him that the publications were sent to him; and, since he did not receive them, Plaintiff concludes “on information and belief” that Officer Tyree “censored” his subscription.

         This is the second Motion to Dismiss filed by Defendant. Defendant's initial Motion to Dismiss was mooted when Plaintiff responded to it with his Motion to Amend and proposed Amended Complaint.

         Standard of Review

         Under Rule 12(b)(6), the Court must construe the complaint in the light most favorable to the plaintiff, see Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir. 1994); taking all well-pleaded allegations as true and giving the plaintiff the benefit of all reasonable inferences, see Arruda v. Sears, Roebuck & Co., 310 F.3d 13, 18 (1st Cir. 2002); Carreiro v. Rhodes Gill & Co., 68 F.3d 1443, 1446 (1st Cir. 1995). If under any theory the allegations are sufficient to state a cause of action in accordance with the law, the motion to dismiss must be denied. Vartanian v. Monsanto Co., 14 F.3d 697, 700 (1st Cir. 1994).

         While a plaintiff need not plead factual allegations in great detail, the allegations must be sufficiently precise to raise a right to relief beyond mere speculation. See Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (abrogating the “no set of facts” rule of Conley v. Gibson, 355 U.S. 41, 44-45 (1957)). “The complaint must allege ‘a plausible entitlement to relief' in order to survive a motion to dismiss.” Thomas v. Rhode Island, 542 F.3 d 944, 948 (1st Cir. 2008) (quoting Twombly, 550 U.S. at 559). See also Ashcroft v. Iqbal, 556 U.S. 662, 679 (“[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief”). The Court of Appeals has cautioned that the “plausibility” requirement is not akin to a “standard of likely success on the merits, ” but instead, “the standard is plausibility assuming the pleaded facts to be true and read in a plaintiff's favor.” Sepulveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 30 (1st Cir. 2010).

         In considering a motion to dismiss a prisoner's claim that his constitutional rights have been violated, the court must be guided by the principle that, while “prison officials are to be accorded substantial deference in the way they run their prisons, this does not mean that we will rubber stamp or mechanically accept the judgments of prison administrators.” Spratt v. R.I. Dep't of Corr., 482 F.3d 33, 40 (1st Cir. 2007) (citation omitted). In addition, this Court has 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).

         Facts

         Like his initial Verified Complaint, Plaintiff's Amended Complaint stems from his failure to receive six issues of ULK which he contends were censored by Defendant without “timely and adequate notice….” (ECF Doc. No. 13 at p. 2). Plaintiff asserts that he requested a free subscription to ULK in October 2016 by mailing a written request to the publisher in San Francisco, California. Id. at p. 7. He claims he never received any newsletters while housed in the ACI's Maximum Security Facility, and, in November 2017, he was transferred to the ACI's High Security Center. Id. at p. 7. Once transferred, Plaintiff sent another written request to the Publisher for a subscription to ULK and “inquired whether or not [they] had ever received his October 2016 subscription request, and if they had, whether or not they had sent any ULK issues to him.” Id.

         Plaintiff asserts that the publisher responded to him via letter and explained that it had sent six issues to Plaintiff. Id. at p. 8. Plaintiff then concludes “on information and belief, [Officer Tyree] received all six (6) issues of ULK in question, and is solely responsible for censoring and not delivering all six (6) ULK issues.” Id. Further allegations “[o]n information and belief” include that Officer Tyree “did not provide notice to [the Publisher of ULK] that he was censoring and not delivering their ULK subscription to Mr. Paiva”, and that Officer Tyree “did not return the six ULK issues to [the Publisher], and instead disposed of them on his own.” Id. at p. 10.

         On January 22, 2018, Plaintiff submitted a written request to the ACI for review of his claim that Officer Tyree censored his subscription. Id. at p. 11. He filed the present case prior to receiving any response to his request from prison officials. While this case was pending, on February 27, 2018, Plaintiff received a response from Deputy Warden Michael Moore that the ACI has no record of receiving the Publications in question. Id. at p. 11-12. Deputy Warden Moore concluded that because there was no record that the ACI received the newspapers, there was no further action that could be taken. Plaintiff asserts that ...


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