United States District Court, D. Rhode Island
RICHARD J. DUPONTE, II, Plaintiff,
PATRICIA A. COYNE-FAGUE, in her official capacity only; MATTHEW KETTLE, JEFFREY ACETO, BRUCE ODEN, JACK WARD, FREDD SPECHT, TERESA BERUBE, JOSEPH DINITTO, and WILLIAM BEGONES, in their individual and official capacities; A.T. WALL, in his individual capacity only! and the RHODE ISLAND DEPARTMENT OF CORRECTIONS, Defendants.
J. McCONNELL, JR UNITED STATES DISTRICT JUDGE
J. DuPonte, II has brought a complaint against the Rhode
Island Department of Corrections ("RIDOC") and
various employees alleging violations of his civil rights
during his time as an inmate, Three motions are before the
Court- (1) Defendants have moved for summary judgment; (2)
Mr. DuPonte moved to compel answers to interrogatories; and
(3) Mr. DuPonte moved to inspect the High Security Center
segregation unit of the Adult Correctional Institute
("ACI"). For the following reasons, the Court
DENIES Defendants' Motion for Summary Judgment (ECF No.
59), DENIES Mr. DuPonte's Motion to Compel (ECF No. 58),
and GRANTS Mr. DuPonte's Motion to Inspect (ECF No. 57).
Defendants have moved for summary judgment. ECF No. 59. The
motion is DENIED without prejudice.
their motion, the Defendants have implicated the propriety of
the service of the Summons and Complaint on the Defendants
individually. The U.S. Marshals Service filed Proofs of
Service showing that they served all Defendants by serving
the Rhode Island Attorney General's office. On the return
of service for each of the individuals, an Assistant Attorney
General wrote "in official capacity only." ECF No.
11 at 3, 5, 7, 9, 11, 13, 15, 17, and 19.
Defendants (collectively-and without any designation that
they were filing the motion only in their official capacity)
then moved to dismiss the entire complaint under Fed.R.Civ.P.
12(b)(6) with no mention of insufficient service of process.
See ECF No. 14. After the Court ruled on the motion,
Defendants filed an answer. The answer did not state that
Defendants were answering in their official capacity only and
did not raise insufficient service as a defense. See
ECF No. 26. The case then proceeded for almost two years. No
later filings by these Defendants referenced the
"official capacity only" status of these
of service is waived if it is not included in the preliminary
motion under Fed.R.Civ.P. 12 or plead as an affirmative
defense in the answer. Fed. R. Civ. P 12(h)(1) (a party
waives an insufficient service of process defense by omitting
it from a Rule 12 motion); Chute v. Walker, 281 F.3d
314, 319 (1st Cir. 2002) (finding defendant waived
insufficiency of service of process objection when he filed
an answer to the complaint and a motion to dismiss without
raising such an objection). These Defendants did neither.
Moreover, once the Defendants answered the Complaint
(including the allegations in the Complaint against the
Defendants individually), with no designation or reservation,
they subjected themselves to the jurisdiction of this Court
individually. See Rogue v. United States, 857 F.2d
20, 22 (1st Cir. 1988) (finding that insufficient service of
process should not be subsumed as having been raised in
answer even if answer asserted lack of personal jurisdiction
or sovereign immunity because "if true objection is
insufficient service of process, litigant should plainly say
so."). In effect, they voluntarily chose to appear
before this Court and answer the complaint.
the issues of both injunctive relief and damages still in
this case, the Court will defer until discovery is complete
the Defendants' contention about whether injunctive
relief can be granted considering Mr. DuPonte's release
from segregation and from the RIDOC.
the Court DENIES without prejudice Defendants' Motion for
Summary Judgment. ECF No. 59.
Compel Answer to Interrogatories
DuPonte moved to compel Defendant Ashbel T. Wall
("Director Wall") to answer interrogatories served
on July 19, 2018. ECF 58. Defendants object that the
interrogatories are addressed to someone who is not currently
a defendant in this action,  exceeded the number permitted by
Fed.R.Civ.P. 33, and seek irrelevant information. First and
as a threshold matter, in light of the ruling above in
section 1, former Director Wall continues to be a defendant
in this litigation in his individual capacity and the Court
properly substituted Director CoyneFague in her official
capacity. Accordingly, and considering the parties
willingness to conference on the matter, the Court DENIES
without prejudice Mr. DuPonte's Motion to Compel Answers
to Interrogatories (ECF No. 58) and orders the parties to
confer within seven days to come to an agreement on the
interrogatories served on July 19, 2018.
Inspection of High Security Center Segregation Unit
DuPonte wants to inspect, photograph, and take video of the
area relevant to this litigation - the High Security Center
Segregation Unit of the ACL ECF No. 57. He makes this request
under Fed.R.Civ.P. 34(a)(2) ("to permit entry onto
designated land or other property possessed or controlled by
the responding party, so that the requesting party may
inspect, measure, survey, photograph, test, or sample the
property or any designated object or operation on it.").
DuPonte has a right to inspect and record the areas of the
ACI that may be relevant to his claims. While the Defendants
raise what may be legitimate security concerns, Mr. DuPonte
has expressed that he will work with the RIDOC to alleviate
as much of the concern as possible. See ECF No. 64
at 3. The parties can work together to come ...