United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.
April 25, 2019, Plaintiff William Lucas, a prisoner, filed a
pro se civil rights form complaint against
“D.C.Y.F., ” the Rhode Island Department of
Children, Youth and Families (“DCYF”), and
Heather Fogg, who is sued “personally and
professionally.” ECF No. 1. Along with his complaint,
Plaintiff filed an Application to Proceed without Prepayment
of Fees and Affidavit (the “IFP motion”), ECF No.
2, which has been referred to me for determination pursuant
to 28 U.S.C. § 636(b)(1)(A).
IFP motion fails because he did not include the required
prisoner trust fund account statement. 28 U.S.C. §
1915(a)(2) (“A prisoner seeking to bring a civil action
. . . without prepayment of fees . . . shall submit a
certified copy of the trust fund account statement . . . for
the 6-month period immediately preceding the filing of the
complaint.”). This deficiency precludes the granting of
the IFP motion until it is cured. Further, the filing of the
IFP motion renders the case subject to preliminary screening
under 28 U.S.C. § 1915(e)(2)(B). Screening requires the
Court to consider whether the complaint is frivolous, fails
to state a claim or seeks monetary relief from a defendant
who is immune. Id. For the reasons that follow, I
find that, as currently crafted, this complaint both fails to
state a claim and seeks monetary relief from immune
defendants, and I recommend that Plaintiff be afforded thirty
days from the adoption of this report and recommendation to
amend the pleading, as well as to file his prisoner trust
fund account statement. If he fails to do either or both, or
if the amended complaint he files is still deficient, I
recommend that the complaint be dismissed and that the IFP
motion be denied.
legal standards applicable at screening may briefly be
summarized. The Court “shall dismiss” a complaint
filed with an IFP motion in reliance on the same legal
principles that are used when ruling on a Fed.R.Civ.P.
12(b)(6) motion to dismiss. Hodge v. Murphy, 808
F.Supp.2d 405, 408 (D.R.I. 2011). That is, a complaint must
contain sufficient factual allegations to “state a
claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678. In
addition, a viable complaint must satisfy Fed.R.Civ.P. 8(a),
which requires a plaintiff to include “a short and
plain statement of the grounds for the court's
jurisdiction . . . and of the claim showing that the pleader
is entitled to relief, ” as well as Fed.R.Civ.P.
10(a-b), which requires a caption and claims set out in
numbered paragraphs, each limited to a single set of
circumstances. Federal district courts are limited to
exercising jurisdiction over cases that arise “under
the Constitution, laws, or treaties of the United States,
” 28 U.S.C. § 1331, and over cases between
citizens of different states where the amount in controversy
exceeds $75, 000, 28 U.S.C. § 1332(a).
has presented a complaint that states only that the case
arose at his home in the “Winter of 2017 around 10 AM,
” when DCYF removed his daughter from his custody
“without good reason or anything at all.” ECF No.
1 at 4-5. For relief, Plaintiff requests that the Court
“overturn [his] open adoption agreement, ‘because
I was blackmailed.'” Id. at 5. He further
asks for “the maximum amount possible” against
DCYF and Ms. Fogg for “mental, emotion pain inflicted
on [him] and [his] daughter.” Id. Claiming
§ 1331 federal question jurisdiction, Plaintiff asserts
that these allegations state a 42 U.S.C. § 1983 claim
against state officials grounded in due process and the equal
protection clause. Id. at 3.
Fed.R.Civ.P. 12(b)(6), this complaint lacks sufficient facts
to advance § 1983 claims under due process or the equal
protection clause; nor does it comply with the mandate of
Fed.R.Civ.P. 8(a)(2) that a pleading must include a
“plain statement of the claim.” Indeed, as to Ms.
Fogg, the complaint alleges no facts at all and therefore
must be dismissed. 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). As to DCYF, Plaintiff supplies no
facts regarding the process by which Defendants took his
daughter or how or why Plaintiff was treated differently,
beyond the conclusory statements that he believes DCYF did
not have “good reason” and that he was
“blackmailed, ” though he does not say by whom.
Thus, the pleading fails to set out “minimal facts as
to who did what to whom, when, where, and why, ” which
is essential for a viable civil rights action. Laurence
v. Wall, No. CA 09-427 ML, 2009 WL 4780910, at *2
(D.R.I. Dec. 10, 2009). With no facts describing what
happened, the pleading fails to scratch the surface of
showing how Plaintiff might have received constitutionally
deficient due process. Similarly, with no allegations that
Plaintiff was deprived of any right, never mind a fundamental
right “regarding family relationships and raising
children, ” based on a state-created classification,
his equal protection claim is not viable. It is conceivable
that Plaintiff may be able to make the requisite showing of a
§ 1983 violation, but his pleading as currently stated
does not and is therefore subject to dismissal for failure to
state a claim.
the entire pleading fails because it lacks facts sufficient
to support any plausible claim, it also is flawed to the
extent that Plaintiff has included claims and/or allegations
that cannot proceed because of immunity. That is,
Plaintiff's claim for money damages against DCYF and Ms.
Fogg in her official capacity must be dismissed because they
are blocked by Rhode Island's sovereign immunity.
Will v. Mich. Dep't of State Police, 491 U.S.
58, 71 (1989) (“neither a State nor its officials
acting in their official capacities are ‘persons'
under § 1983”; claims against State for money
damages barred by Eleventh Amendment and sovereign immunity);
J.R. v. Gloria, 599 F.Supp.2d 182, 184 (D.R.I. 2009)
(“Any discernable claim for money damages out of
official capacity liability against DCYF employees would
ordinarily be dismissed because DCYF, as an arm of the State,
is entitled to Eleventh Amendment sovereign
immunity.”). As to individual capacity claims, assuming
Ms. Fogg is a DCYF social worker who acted on a reasonable
basis,  any claim would fail based on qualified
immunity. See Hatch v. Dep't for Children, Youth
& Their Families, 274 F.3d 12, 25-26 (1st Cir.
is one more potential problem if it turns out Plaintiff wants
this Court to interfere with a state family court judgment.
That the Court may not do because “the
Rooker-Feldman doctrine bars ‘cases brought by
state-court losers complaining of injuries caused by
state-court judgments rendered before the district court
proceedings commenced and inviting district court review and
rejection of those judgments'” Silva v.
Farrell, C.A. No. 18-650JJM, 2018 WL 6505367, at *1 n.5
(D.R.I. Dec. 11, 2018) (quoting Exxon Mobil Corp. v.
Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)).
on the foregoing, I provisionally recommend that
Plaintiff's IFP motion should be denied and that his
complaint should be dismissed. However, because the
deficiencies tainting both the IFP motion and the complaint
may be curable, I further recommend that the Court first
direct Plaintiff to file an amended complaint that cures the
deficiencies identified above and to file his prisoner trust
fund account statement, both within thirty days of the
Court's adoption of this report and recommendation. If
Plaintiff fails to file an amended complaint, or if the
amended complaint fails to cure the deficiencies noted in
this report and recommendation or otherwise fails to state a
claim, or is frivolous or malicious, I recommend that the
complaint be dismissed. 28 U.S.C. § 1915(e)(2). If the
complaint survives screening but Plaintiff fails to file his
prisoner trust fund account statement, I recommend that the
IFP motion be denied and that he be ordered to pay the filing
fee. If he has been denied IFP status and fails to pay the
filing fee, I recommend that the case be dismissed without
objection to this report and recommendation must be specific
and must be served and filed with the Clerk of the Court
within fourteen (14) days after its service on the objecting
party. See Fed.R.Civ.P. 72(b)(2); DRI LR Cv 72(d).
Failure to file specific objections in a timely manner
constitutes waiver of the right to review by the district
judge and the right to appeal the Court's decision.
See United States v. Lugo Guerrero, 524 F.3d 5, 14
(1st Cir. 2008); Park Motor Mart, Inc. v. Ford Motor
Co., 616 F.2d 603, 605 (1st Cir. 1980).
 There can be no doubt that the
separation of a parent and child could implicate due process
considerations. See, e.g., Tower v.
Leslie-Brown, 326 F.3d 290, 298 (1st Cir. 2003)
(“Ordinarily, a deprivation of a fundamental right such
as the custody of one's children must be preceded by
notice and an opportunity to be heard on the matter. However,
in cases where the safety of the child is at risk, the
parents' rights are not absolute.”) (internal
citation omitted); Hatch v. Dep't for Children, Youth
& Their Families, 274 F.3d 12, 20 (1st Cir. 2001)
(“interest of parents in the care, custody, and control
of their children is among the most venerable of the liberty
interests embedded in the Constitution” and “is
protected by the Due Process Clause”).
 There is no question that a state
classification interfering with life decisions or
parent/child relationships could be subject to equal
protection scrutiny. See Zablocki v. Redhail, 434
U.S. 374, 384-85 (1978) (family relationships implicate
fundamental rights and state classifications that
significantly interfere must be based on legitimate and
substantial interests with the means to achieve those
interests narrowly tailored to avoid impingement on
fundamental right); Mass. Bd. of Retirement v.
Murgia, 427 U.S. 307, 312 (1976) (legislation creating
age-based classification that interferes with ...