United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
Lincoln D. Almond, United States Magistrate Judge.
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. 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.
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.
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.
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).
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).
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).
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.
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.
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 ...