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Nickerson v. Providence Plantation

United States District Court, D. Rhode Island

February 20, 2019

JASON NICKERSON, and Similarly-situated Inmates
v.
PROVIDENCE PLANTATION, et al.

          REPORT AND RECOMMENDATION FOR SUMMARY DISMISSAL PURSUANT TO 28 U.S.C. § 1915(e)

          LINCOLN D. ALMOND, UNITED STATES MAGISTRATE JUDGE.

         Background

         Pending before me for determination is Plaintiff's Application to Proceed In Forma Pauperis (“IFP”) (ECF Doc. No. 2) pursuant to 28 U.S.C. § 1915. On January 25, 2019, Plaintiff Jason Nickerson, a state inmate, filed a hand-written pro se Complaint consisting of 121 pages and 529 numbered paragraphs. (ECF Doc. No. 1). Plaintiff sues on his own behalf as well as “similarly-situated individuals [who] are/can be/have been incarcerated in Maximum Security and/or served food from a R.I.D.O.C. dining hall and Keefe [Commissary] store order” including parolees and those on probation. Id. at p. 3. He sues over eighty individuals and entities (both governmental and private) ranging from Rhode Island's Governor and Department Directors to rank-and-file Correctional Officers, Counselors, Doctors, Nurses, a Dietician and a Chaplain. Id. at pp. 3-17. His legal claims are numerous and include allegations of racial discrimination, retaliation, unsanitary food service and living conditions, inadequate medical care, anti-trust violations, cruel and unusual punishments and deprivation of due process. Id. at p. 2. Plaintiff's Complaint is 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 (ECF Doc. No. 2) is GRANTED.

         Having granted IFP status, this Court is required by statute to further review Plaintiff's Complaint sua sponte under 28 U.S.C. § 1915(e)(2)(B) 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 WITHOUT PREJUDICE and with leave to file an Amended Complaint within thirty days.

         Standard of Review

         Section 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).

         Discussion

         I 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 is required, but with leave to file an Amended Complaint.

         A. Rules 8 and 10, Fed. R. Civ. P.

         Pursuant to Rule 8(a), a plaintiff must state his or her claims by way of a “short and plain statement of the claim showing that the pleader is entitled to relief.” In addition, Rule 10(b) requires that a party must state claims in numbered paragraphs, “each limited as far as practicable to a single set of circumstances.” The purpose of these Rules is to place the Court and the defendants clearly on notice as to what the plaintiff is claiming and who he is bringing those claims against. Salahuddin v. Cuomo, 861 F.2d 40, 42 (2nd Cir. 1988) (pleading must allege facts sufficient to allow defendants to prepare a defense against such claims).

         As presently drafted, Plaintiff's pro se Complaint is neither short nor plain. Although Plaintiff's Complaint is factually intensive (ECF Doc. No. 1 at pp. 18-103), his legal claims for relief are conclusory and stated against large groups of Defendants without any clear delineation of their respective involvement. Id. at pp. 105-119. He string cites dozens of state and federal statutes, constitutional provisions and common-law theories of liability in single paragraphs against large groups of Defendants.[1] His Complaint, as presently drafted, does not fairly and adequately put this Court, and many of the named Defendants, on notice as to the particular claims brought against particular Defendants, and the particular facts relevant to such individual claims. Educadores Puertorriquenos En Accion v. Hernandez, 367 F.3d 61, 68 (1st Cir. 2004) (“[I]n a civil rights action…the complaint should at least set forth minimal facts as to who did what to whom, when, where, and why…”); Bartolomeo v. Liburdi, No. 97-0624-ML, 1999 WL 143097, at *3 (D.R.I. Feb. 4, 1999) (action dismissed as to defendants against whom no factual allegations directed). While dismissal of the present Complaint is recommended, I also recommend that the dismissal be without prejudice and with leave for Plaintiff to file an Amended Complaint to remedy the pleading deficiencies noted herein.

         B. Misnamed and Improperly Named Defendants

         As previously noted, Plaintiff names over eighty individuals and entitles as Defendants in this case. He identifies numerous Defendants as John or Jane Does accompanied by either a first or last name, job title or generic role such as conspirator.

         Plaintiff is an inmate in the custody of the Rhode Island Department of Corrections (“RIDOC”). He sues the RIDOC[2] as well as its present and former Directors and numerous rank- and-file employees. He sues the Directors in their official capacities and other rank-and-file employees in both their individual and official capacities. Plaintiff also sues the “Providence Plantation;” however, it is clear from context that Plaintiff intends to sue the State of Rhode Island and uses the label ...


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