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”) (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)
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.
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
is required, but with leave to file an Amended Complaint.
Rules 8 and 10, Fed. R. Civ. P.
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).
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. 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
Misnamed and Improperly Named Defendants
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.
is an inmate in the custody of the Rhode Island Department of
Corrections (“RIDOC”). He sues the
RIDOC 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 ...