United States District Court, D. Rhode Island
VICTOR A. TAVARES, Plaintiff,
DIRECTOR COYNE-FAGUE; DEPUTY DIRECTOR KETTLE; GRIEVANCE COORDINATOR GALLIGHER; WARDEN ACETO; CAPTAIN HAIBON, Defendants.
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.
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
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.
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.
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. 18-08 ECF No. 7.
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.
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”). 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
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
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.
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
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. 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.
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 ...