United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
WILLIAM E. SMITH CHIEF JUDGE.
November 6, 2016, Magistrate Judge Lincoln D. Almond filed a
Report and Recommendation (“R. & R.”)
recommending that the Court grant Defendant Vance Tyree's
motions to dismiss the Plaintiff's 42 U.S.C. § 1983
claims. See ECF No. 36. The Plaintiff
filed a timely objection to the R. & R. See
Pl.'s Obj. to the Magistrate Judge's R. & R. to
Dismiss Pl.'s Am. Compl. (“Pl.'s Obj.”),
ECF No. 37. After carefully reviewing the grounds for the
Plaintiff's objections and the pleadings, and for the
reasons that follow, the Court OVERRULES the Plaintiff's
objections, ACCEPTS the R. & R., and ADOPTS its reasoning
and conclusions. The Defendant's motions to dismiss are
party timely objects to a magistrate judge's report and
recommendation, the Court reviews the challenged rulings
de novo. 28 U.S.C. § 636(b)(1)(C); United
States v. Raddatz, 447 U.S. 667, 673-76 (1980). Here,
the Plaintiff argues the R. & R. is faulty because (1)
the Amended Complaint states facts that plausibly support his
claims; (2) he exhausted all available administrative
remedies; and (3) the Defendant is not entitled to qualified
immunity. See generally Pl.'s Obj. None of these
objections are creditable.
Court agrees with Magistrate Judge Almond's conclusion
that the Plaintiff's allegations are “purely
speculative.” R. & R. at 5. Plaintiff allegedly
ordered a free newspaper he did not receive. Am. Compl.
¶¶ 19-20, ECF No. 13. He contends that he did not
receive the newspaper because “on information and
belief” the Defendant censored his mail. Id.
¶ 25. The only alleged support for this belief is an
“Unconfirmed Mail Form” allegedly sent by the
newspaper's publisher purportedly showing that the
newspapers were mailed. See Am. Compl. Ex. A. The
form is dated two months after the Plaintiff filed
this action. Id. The Amended Complaint contains no
facts to support the assertion that the Defendant even
received, never mind censored, the Plaintiff's
newspapers. At most, the allegations comprise speculation
about why the Plaintiff might not have received the alleged
mailings. Thus, the Plaintiff has not plausibly stated a
claim for relief. See Ashcroft v. Iqbal, 556 U.S.
622, 678 (2009) (“A pleading that offers ‘labels
and conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
554, 555 (2007)); McKenna v. DiNapoli, 16-CV-0024
(DRH)(GRB), 2017 WL 6459456, *4 (Dec. 15, 2017) (holding
pleadings must state “specific facts” showing the
“basis for [p]laintiff's information and
belief” rather than “con-clusory
as Magistrate Judge Almond concluded, it appears the
Defendant did not exhaust his administrative remedies.
See 42 U.S.C. § 1997e(A) (“No action
shall be brought with respect to prison conditions under
section 1983 . . . until such administrative remedies as are
available are exhausted.”) The Plaintiff wrote to the
Adult Correctional Institution's assistant director about
his concerns, but filed this action without waiting to
receive the assistant director's response. Compare
Compl., ECF No. 1 (dated Feb. 5, 2018), with Am.
Compl. Ex. A (assistant director's response dated
February 26, 2018). Accordingly, this action was brought
before the Plaintiff's administrative remedies were
the third objection, for the reasons set forth above, the
Amended Complaint must be dismissed regardless of whether the
Defendant is entitled to qualified immunity. See R.
& R. 7-8. The Court agrees, in any event, that the
Plaintiff has not pled facts plausibly suggesting the
Defendant is not entitled to proceeding against him in his
individual capacity. “Qualified immunity shields
federal and state officials from money damages unless a
plaintiff pleads facts showing (1) that the official violated
a statutory or constitutional right, and (2) that the right
was ‘clearly' established' at the time of the
challenged action.” Ashcroft v. al-Kidd, 131
S.Ct. 2074, 2080 (2011) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). “Unless the
plaintiff's allegations state a claim of violation of
clearly established law, a defendant pleading qualified
immunity is entitled to dismissal before the commencement of
discovery.” Mitchell v. Forsyth, 472 U.S. 511,
526 (1985). Here, the Plaintiff failed to assert any
well-pled allegations that the Defendant did anything to
violate his clearly established constitutional rights.
Qualified immunity therefore requires dismissal of the
Plaintiff's claims against the Defendant in his
foregoing reasons, the Court OVERRULES the Plaintiff's
objections (ECF No. 37), ACCEPTS the R. & R. (ECF No.
36), and ADOPTS its reasoning and conclusions. The
Defendant's motions to dismiss (ECF Nos. 15, 35) are
 While the Defendant's first motion
to dismiss (ECF No. 15) was pending, the Defendant was served
with the Plaintiff's First Amended Complaint asserting
claims against the Defendant in his individual capacity. The
Defendant filed a second motion to dismiss (ECF No. 35)
incorporating his earlier arguments and additionally arguing
that he was entitled to qualified immunity.
 Notably, the Plaintiff delayed raising
his censorship allegations with the assistant director for
nearly a year but refused to wait more than three weeks to