United States District Court, D. Rhode Island
SALVATORE R. ROMANO
A.T. WALL, et al.
REPORT AND RECOMMENDATION FOR SUMMARY DISMISSAL
PURSUANT TO 28 U.S.C. Â§ 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 July 9, 2019,
Plaintiff, a state inmate, filed a hand-written, pro
se Complaint consisting of over 80 pages and over 250
numbered paragraphs. (ECF Doc. Nos. 1, 1-1 and 1-2). The
Complaint caption indicates as Defendants that “[t]here
are to [sic] many to list here.” (ECF Doc. No. 1 at p.
Part III of the Complaint names approximately 100 individual
Defendants including correctional officers and
administrators, state elected officials, medical personnel,
an attorney, state police detectives and the secretary to
Rhode Island's Governor. (ECF Doc. No. 1 at pp. 2-17). The
facts of Plaintiff's Complaint primarily arise out of a
July 2, 2017 incident in which Plaintiff claims he was
assaulted in the “maximum security yard” by other
inmates. Id. at pp. 19-21. He claims that the
correctional officers who responded to the assault were
“criminally negligent.” (ECF Doc. No. 1-1 at p.
3). He appears to claim that the assault was followed by a
pattern of unlawful treatment and unsupported discipline.
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) is GRANTED.
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.
Section 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.
19-60), his legal claims for relief are conclusory and stated
against a large group of Defendants without any clear
delineation of their respective involvement. The lack of
clarity also flows from Plaintiff's piece-meal filings.
In addition to his lengthy, hand-written Civil Rights
Complaint (ECF Doc. No. 1), Plaintiff filed a separate
twelve-page Statement of Claim and a separate seven-page
Statement of Injuries and Relief Sought. (ECF Doc. Nos. 1-1
and 1-2). 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
sues a number of so-called “supervisory
defendants.” He asserts generally that certain
individuals knowingly acquiesced in the unconstitutional
behavior of subordinates. For instance, he alleges that the
former Corrections Director A.T. Wall was “legally
responsible for the overall operation of the
Department” and such responsibilities were
“shared” with Assistant Director James Weeden.
(ECF Doc. No. 1 at p. 3). He sues former State Attorney
General Peter Kilmartin and current Governor Gina Raimondo
for failing to answer letters he sent to them. Id.
at p. 35.
§ 1983 action, only direct, rather than vicarious,
liability is available. See Aponte Matos v. Toledo
Davila, 135 F.3d 182, 192 (1st Cir. 1998). At
a minimum, to support a claim of supervisory liability, a
plaintiff must plead facts indicating an
‘“affirmative link' between the behavior of
the subordinate and the action or inaction of his
supervisor…such that ‘the supervisor's
conduct led inexorably to the constitutional
violation.'” Maldonado v. Fontanes, 568
F.3d 263, 275 (1st Cir. 2009) (citations omitted);