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Tavares v. Coyne-Fague

United States District Court, D. Rhode Island

August 22, 2019

VICTOR A. TAVARES, Plaintiff,
v.
DIRECTOR COYNE-FAGUE; DEPUTY DIRECTOR KETTLE; GRIEVANCE COORDINATOR GALLIGHER; WARDEN ACETO; CAPTAIN HAIBON, Defendants.

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Victor A. Tavares, a prisoner at the Adult Correctional Institutions (“ACI”), has filed a pro se complaint (“Complaint”) pursuant to 42 U.S.C. § 1983 against various officials of the Rhode Island Department of Corrections (“RIDOC”) in their official and individual capacities. He alleges that he is being unlawfully confined at the ACI past the correct expiration of his sentence, which should have ended several months ago. He claims that Defendant Haibon, with malicious intent, altered RIDOC records to add eighteen months to his sentence by creating a fictitious third Count, removing the commitment dates and inputting retroactive dates, thereby eliminating credit for time served. ECF No. 1 ¶ 13 (“Compl.”). To cover the element of exhaustion of state remedies, he points to his unsuccessful filing of a grievance pursuant to the ACI's grievance process. Id. ¶ 15. For remedies, Plaintiff asks this Court to correct the sentence to reflect that the commitment date was July 17, 2015, to delete the fictitious third Count, to remove the “retro dates, ” and to provide credit for time served on each of the two Counts of conviction. He also requests compensatory and punitive damages.

         Along with his Complaint, Plaintiff filed a Motion for Leave to Proceed in Forma Pauperis (the “IFP Motion”), ECF No. 2, which has been referred to me for determination pursuant to 28 U.S.C. § 636(b)(1)(A). Based on my review of the IFP application and the prisoner trust fund account statement, I conclude that Plaintiff has satisfied the requirements of 28 U.S.C. § 1915(a)(1); accordingly, if the Complaint survives screening, I will grant the IFP motion and calculate the initial filing fee that must be paid before the case may proceed. However, because of the IFP application, this case is subject to preliminary screening under 28 U.S.C. § 1915(e)(2)(B). For the reasons that follow, I recommend that it be summarily dismissed.

         I. BACKGROUND

         This is the third filing in this Court since January 2018 in which Plaintiff complains of the Superior Court's handling of the probation violations in his criminal case, Superior Court No. P1-2006-0506B, or RIDOC's calculation of the resulting sentence. Collectively, these filings, including the instant § 1983 Complaint, tell a complicated and confusing story regarding travel of the matter. What follows is an attempt to make sense of it.[1]

         It appears to begin in this Court with Tavares v. Kilmartin, C.A. 18-08JJM, a § 1983 case filed in January 2018 (“Kilmartin”). In Kilmartin, Plaintiff alleged that he had been convicted in 2007 of two state law claims (robbery and conspiracy), nominated as Counts 1 and 4. Then, in 2015, he was found to have violated his terms of probation. According to the complaint in this first § 1983 case, Plaintiff claimed the resulting sentence of five years to serve on both Counts violated his rights to due process and under the Eighteen Amendment and the prohibition on Bills of Attainder. 18-08 ECF No. 1 ¶¶ 9-11. Because his complaint recited that he received a hearing before Justice Krause of the Rhode Island Superior Court, it was dismissed at screening on January 31, 2018, for failure to state a claim.[2] 18-08 ECF No. 7.

         In sequence, next (on August 17, 2018), Plaintiff alleges that he appeared again in the Superior Court, this time before Superior Court Justice Matos. In the instant Complaint, he claims that, as a result of this hearing, the violation sentence was “amended, ” to three-and-one-half years to serve with credit for time served. Compl. ¶ 12. However, he also alleges that the amendment applied only as to Count One of Docket No. P1-2006-0506B.

         The next related filing in this Court was a Motion for Leave to Supplement filed in Tavares v. Macomber, C.A. No. 18-606-WES (“Macomber”).[3] In Macomber, Plaintiff's Motion sought to add a new claim and new defendant to an existing case. The requested supplementation was based on the allegation that the Justice Matos sentence had been incorrectly entered into RIDOC's database, thereby extending Plaintiff's sentence by eighteen months. Attached to the Macomber Motion is the Justice Matos Judgment of Conviction; contrary to Plaintiff's allegation that it merely amended (by reducing) his sentence on Count One of Docket No. P1-2006-0506B, it appears to reflect judgment for a violation with the imposition of three-and-one-half years. 18-606 ECF No. 34-1 at 1. Except for the reference to Superior Court Docket No. P1-2006-0506B, there is no indication that it is an amendment to a prior judgement. Also attached to the Motion is the ACI entry, which appears correctly to reflect the Justice Matos Judgment of Conviction in RIDOC's Inmate Sentence Information tracking system. Id. at 1-3.

         In addition to the Justice Matos Judgment of Conviction and related ACI data entry, the Macomber Motion also includes Plaintiff's correspondence regarding his grievance dated March 3, 2019, which he presented to establish exhaustion of available state remedies. Id. at 4. In the grievance itself, Plaintiff claimed that a “fictitious charge” was added to his sentence; it asked that RIDOC correct its record regarding the length of Plaintiff's sentence. Id. Responding to the grievance, RIDOC informed Plaintiff that the entry does not reflect a “fictitious charge, ” as well as (pertinent to whether the grievance exhausted available remedies) that matters related to court decisions are not grievable. Id. In a more detailed response that followed on April 25, 2019, RIDOC officials advised Plaintiff that his sentence was properly calculated and that his concern about the sentence imposed by the Justice Matos Judgment of Conviction is a “non-grievable area[] of facility life.” Id. at 5. Plaintiff also received a memorandum from “Records and ID.” Id. at 6. It states in relevant part:

The courts must be specific with a retro date or block of time. “Credit time served” will not get you AT time while sentenced on another sentence. He must have the courts be specific, his attorney can ask for the GT and if granted a new document will be forwarded to us.

Id.

         In Macomber, Plaintiff failed to allege that he followed the advice in this “Records and ID” memorandum - that is, the Macomber Motion includes no allegation that Plaintiff did anything other than make a grievance through the ACI's grievance process. Specifically, there is no suggestion that Plaintiff has ever returned to the Superior Court to ask Justice Matos to clarify the error (if any) in the Justice Matos Judgment of Conviction.

         This Court denied the Macomber Motion to Supplement for two reasons. First, the Court found that it improperly sought to inject an entirely new and unrelated claim into an existing case. More importantly, the Court based the denial of the Motion on the finding that the proposed claim was futile. 18-606 ECF No. 43 at 5-7.[4] The Court held that, because the core of Plaintiff's new claim concerned the duration of his confinement and he was not seeking money damages, the proposed claim must be treated as a habeas corpus petition pursuant to 28 U.S.C. § 2254. 18-606 ECF No. 43 at 5 (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (“when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus”); Whitman v. Ventetuolo, 25 F.3d 1037, 1994 WL 246063, at *1 (1st Cir. June 7, 1994) (per curiam) (when claimant “seeks to shorten the duration of his confinement, the district court correctly found that such relief is cognizable only in federal habeas corpus, with its concomitant requirement of exhaustion of state remedies”)). Because a prisoner may bring such a claim to federal court only after all applicable state-law remedies have been properly exhausted, the Court held that the documents Plaintiff had attached to the Motion made clear that his exhaustion obligation was not satisfied by the filing of the grievance. Rather, a claim related to the length of the sentence is a matter set by “laws, regulations, and/or court decisions” that is not covered by the Rhode Island grievance system. Id. at 6. Accordingly, the Court found the proposed supplementation failed to state a claim because of Plaintiff's failure to exhaust applicable state remedies. Id. at 6-7. The Motion was denied.

         Undaunted, less than two months later, Plaintiff filed the instant Complaint. It does not purport to be a habeas petition. Rather, it makes the same futile § 1983 claim that he tried to inject into Macomber when he made the Motion to Supplement. It also makes the same allegation that state remedies were exhausted based on the same grievance that was found to be insufficient in Macomber. It still lacks any allegation that Plaintiff has returned to the Superior Court to ask Justice Matos to clarify the “retro date” (as was suggested to him in the memorandum attached to the Macomber Motion to Supplement) nor does it claim that Plaintiff has ever sought relief from the allegedly erroneous sentence pursuant to established state procedures. The new ...


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