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.
3) pursuant to 28 U.S.C. § 1915. On September 24, 2019,
Plaintiff Jamal Pinkerton, an A.C.I. 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'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,
I conclude that it is incomplete and should be DENIED without
prejudice. In particular, the Application is not signed by
Plaintiff under penalty of perjury as required, and it is not
accompanied by a certified statement of Plaintiff's
inmate account for the last six months as
status were granted, this Court would also be 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 due to
non-exhaustion of administrative remedies.
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 without prejudice to refiling after
exhaustion of administrative remedies.
Complaint is bare bones. He alleges violation of the Eighth
and Fourteenth Amendments based on a burn (and resulting
scar) he received on his left buttock on February 16, 2017.
He alleges that he was injured “by no choice of [his]
own” when he “made contact with uncovered, hot
steam pipes” in the shower area. (ECF No. 1 at p. 5).
He indicates that he received medical treatment following the
injury. Id. He seeks an order requiring the A.C.I.
to “remedy the burn hazard” and compensation for
his burn injury. Id.
these facts, it is reasonable to infer that Plaintiff was
accidentally burned and is claiming that the A.C.I. was
negligent and/or indifferent to inmate safety by exposing him
to an uncovered, hot steam pipe in the shower area. Plaintiff
fails to state a viable Fourteenth Amendment claim since it
is it is well established “that mere negligence causing
unintended…injury…by a state official is not
the type of state action the Fourteenth Amendment's due
process clause was meant to address.” Ashness v.
Quick, No. 89-0057-L, 1990 WL 40925 at *1 (D.R.I. Mar.
13, 1990) (citing Daniels v. Williams, 474 U.S. 327
(1986) and Davidson v. Cannon, 474 U.S. 344 (1986)).
However, although his claim is thin, Plaintiff arguably
states at least a plausible Eighth Amendment conditions of
confinement claim, i.e., a deliberate indifference
to inmate safety. See Jefferson v. Raimondo, No.
17-439-WES, 2018 WL 3873233 at **8-9 (D.R.I. Aug. 15, 2018).
Plaintiff may state a plausible Eighth Amendment claim, his
claim must be dismissed at this time as a matter of law due
to his admitted failure to exhaust his administrative
remedies under the A.C.I. Inmate Grievance Procedure. The
Prison Litigation Reform Act (“PLRA”), 42 U.S.C.
§1997e, provides that “[n]o action shall be
brought with respect to prison conditions under section 1983
of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). “Section
1997e requires an inmate to exhaust all available
administrative processes before filing a federal lawsuit
relating to the conditions of his or her confinement, even if
some or all of the relief the inmate seeks is not available
through the administrative process.” Young v.
Wall, No. Civ.A. 03-220S, 2006 WL 858085, at *2 (D.R.I.
Feb. 27, 2006) (citing Booth v. Churner, 532 U.S.
731, 734 (2001)). The “PLRA's exhaustion
requirement applies to all inmate suits about prison life,
whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some
other wrong.” Porter v. Nussle, 534 U.S. 516,
532 (2002). In Woodford v. Ngo, 548 U.S. 81 (2006),
the Supreme Court held that “to properly exhaust
administrative remedies prisoners must ‘complete the
administrative review process in accordance with the
applicable procedural rules'- rules that are defined not
by the PLRA, but by the prison grievance process
itself.” Jones v. Bock, 549 U.S. 199, 218
(2007) (quoting Ngo, 548 U.S. at 88) (internal
citation omitted; see also Id. (“[I]t is the
prison's requirements, and not the PLRA, that define the
boundaries of proper exhaustion.”).
Plaintiff indicates in his Complaint that he did not file a
grievance concerning the events underlying his claims. (ECF
No. 1 at p. 7). In addition, his only explanation for not
filing a grievance is that he “didn't know [he] had
to file one.” Id. When asked on the Complaint
form if he otherwise informed prison officials of his claim,
he states only that he “showed the block officer the
burn and he sent [Plaintiff] to the hospital.”
Id. These assertions of Plaintiff are more than
sufficient to support a non-exhaustion finding as a matter of
law. Plaintiff did not file a grievance with the A.C.I., has
no valid excuse for not doing so and did not otherwise
informally present his grievance about the exposed steam pipe
to prison officials. Because the PLRA mandates that Plaintiff
exhaust his administrative remedies within the correctional
facility before coming to this Court, Plaintiff's failure
to do so requires that this Complaint be DISMISSED without
prejudice due to non-exhaustion.
reasons stated, Plaintiff's Motion to Proceed In Forma
Pauperis (ECF No. 3) is DENIED without prejudice. In
addition, I further recommend that Plaintiff's Complaint
(ECF No. 1) be DISMISSED WITHOUT PREJUDICE due to