United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION FOR SUMMARY DISMISSAL
PURSUANT TO 28 U.S.C. § 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 David Barber, a state inmate, filed a hand-written
pro se Complaint alleging violations of his rights
under the Eighth and Fourteenth Amendments to the United
States Constitution. Plaintiff sues two correctional officers
(Capt. Walter Duffy and Lt. Charles Burt), Assistant
Corrections Director Matthew Kettle, Deputy Warden Corey
Cloud and two Corrections Investigators (Steven Cabral and
Allen Reposo). (ECF Doc. No. 1 at p. 2). 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.
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).
applying a Rule 12(b)(6) standard, the Court must accept as
true all plausible factual allegations in the Complaint and
draw all reasonable inferences in Plaintiff's favor.
Aulson v. Blanchard, 83 F.3d 1, 3 (1st
Cir. 1996). In so doing, the Court is guided by the
now-familiar standard requiring the inclusion of facts
sufficient to state a plausible claim for relief:
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face. A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. The
plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility
that a defendant has acted unlawfully.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal citations and quotations omitted). Put differently,
for a complaint to survive a motion to dismiss, its
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
this standard, Plaintiff's Complaint does not contain
enough facts to state any plausible constitutional
violations. First, Plaintiff alleges that Investigators
Cabral and Reposo interviewed his fiancé on January 7,
2019 and revealed “private, confidential
information” to her about him. (ECF Doc. No. 1 at p.
3). Plaintiff alleges that the disclosure of this information
ended the relationship and caused him mental anguish.
Plaintiff's Complaint is notable more for what it does
not say than for what it does say. Plaintiff describes the
“private, confidential information” in a
conclusory fashion and provides not even a general
description of its nature or the basis for his claim that it
was “confidential.” He alleges that the
information was disclosed to his fiancé in “an
attempt to infuriate her and persuade her into