United States District Court, D. Rhode Island
DAVID A. SILVIA
STATE OF RHODE ISLAND, et. al.
REPORT AND RECOMMENDATION FOR SUMMARY DISMISSAL
PURSUANT TO 28 U.S.C. § 1915(E)
Lincoln D. Almond, United States Magistrate Judge
30, 2019, Plaintiff filed a pro se Complaint
accompanied by an Application to Proceed Without Prepayment
of Fees including the $400.00 per case filing fee. (ECF Doc.
Nos. 1, 2). Plaintiff's Application (ECF Doc. No. 2)
filed pursuant to 28 U.S.C. § 1915 has been referred to
me for determination. 28 U.S.C. § 636; LR Cv 72. After
reviewing Plaintiff's Application signed under penalty of
perjury, I conclude that Plaintiff is financially unable to
pay the fees and costs of this proposed civil case and thus,
Plaintiff's Application to Proceed Without Prepayment of
Fees (ECF Doc. No. 2) is GRANTED.
granted IFP status, I am required by statute to further
review Plaintiff's Complaint sua sponte under 28
U.S.C. § 1915(e)(2) and to dismiss 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 because it is
“frivolous, ” and “fails to state a claim
on which relief may be granted.” See 28 U.S.C.
alleges that R.I. Gen. Laws § 44-33-3 violates the
Americans with Disabilities Act (“ADA”) because
it does not extend property tax credits to disabled veterans.
Plaintiff “[a]sk [sic] this Court to agree that the RI
House of Representative's [sic] are discriminating
against all RI Veterans by not changing this legislation to
include all Disabled Veterans that receive Disability
Benefits paid by the Dept of Veterans Affairs.…”
(ECF Doc. No. 1 at p. 4).
the second iteration of this Complaint filed by Plaintiff. In
2017, Plaintiff filed a nearly identical Complaint alleging
the same violation of the ADA via R.I. Gen. Laws §
44-33-3. See C.A. No. 17-00310-JJM. U.S. District
Judge John J. McConnell, Jr. dismissed that case on November
9, 2017, noting that Plaintiff's Complaint failed to
state a claim upon which relief could be granted because the
federal court lacks authority to interfere in the legislative
process by ordering the amendment of the statute at issue.
Further, the Court noted that Plaintiff failed to plausibly
allege actionable discrimination against the disabled and
that his equal protection challenge failed because he did not
allege the lack of a rational basis by the legislature.
(See Text Order dated November 9, 2017 in C.A. No.
17-00310-JJM). In a supplemental filing entitled
“Plaintiff's Memorandum To Forward Further
Information” filed on June 4, 2019 (ECF Doc. No. 5)
Plaintiff admits this is the “same cause of
Discrimination” as his 2017 lawsuit and asks that the
Court “order the Defendants to make the law to change
the language and include RI Disabled Veterans to be ellagable
[sic] to take this credit….” Id. at p.
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 filed
in forma pauperis 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 Afrivolous." 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).
Court is recommending that Plaintiffs Complaint be summarily
dismissed pursuant to 28 U.S.C. § 1915(e)(2). In making
this recommendation, this Court has taken all of the
allegations in Plaintiffs Complaint as true and has drawn all
reasonable inferences in his favor. Estelle v.
Gamble, 429 U.S. 97 (1976). In addition, this Court has
liberally reviewed Plaintiffs 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
Plaintiffs Complaint, dismissal is required because the newly
filed Complaint is barred by the doctrine of res judicata.
the doctrine of res judicata, “a final judgment on the
merits of an action precludes the parties or their privies
from relitigating claims that were raised or could have been
raised in [a previous] action.” Apparel Art
Int'l, Inc. v. Amertex Enter. Ltd., 48 F.3d 576, 583
(1st Cir. 1995). Res judicata provides a
“strong incentive” for parties to “plead
all factually related allegations and attendant legal
theories for recovery the first time they bring suit.”
Id. The doctrine also serves important policy
purposes such as relieving litigants of the “cost and
vexation of multiple lawsuits, conserv[ing] judicial
resources, and, by preventing inconsistent decisions,
encourag[ing] reliance on adjudication.” Id.
quoting Allen v. McCurry, 449 U.S. 90, 94 (1980).
will be barred on res judicata grounds when a three-part test
is met: first, there must be a final judgment on the merits
in an earlier action; second, the causes of action in both
the earlier and later suits must be sufficiently identical;
and third, the parties to the two suits must be sufficiently
identical. Id. See also Kale v. Combined Ins. Co. of
Am., 924 F.2d 1161, 1165 (1st Cir. 1991).
case, the first part of the three-part test is easily
satisfied, as a final judgment on the merits was entered in
favor of Defendants in the previous Complaint filed by
Plaintiff regarding the alleged discrimination against
veterans under R.I. Gen. Laws § 44-33-3. See
Text Order dated November 9, 2017 in C.A. No. 17-00310-JJM.
The second prong of the test requires the Court to consider
whether the earlier- and later-filed suits contain claims
that are sufficiently identical. The First Circuit Court of
Appeals has held that the “transactional
approach” defines a cause of action. In other words,
when “the facts form a common nucleus that is
identifiable as a transaction or series of related
transactions, ” then those facts constitute one cause
of action. Apparel Art, 48 F.3d at 584. Thus, in
determining whether two causes of actions are distinct, a
court must analyze whether the “party has advanced
claims in multiple litigations which derive from the same
nucleus of operative facts.” Id. The factors
to be considered in this analysis include: “(1) whether
the facts are related in time, space, origin or motivation;
(2) whether the facts form a convenient trial unit; and (3)
whether treating the facts as a unit ...