Botelho v. Coyne-Fague

          REPORT AND RECOMMENDATION FOR SUMMARY DISMISSAL PURSUANT TO 28 U.S.C. § 1915(E)

          LINCOLN D. ALMOND, UNITED STATES MAGISTRATE JUDGE

         Background

         Pending before me for determination is Plaintiff's Application to Proceed In Forma Pauperis (“IFP”) (ECF No. 2) pursuant to 28 U.S.C. § 1915. On October 15, 2019, Plaintiff Joseph Botelho, a state inmate, filed a hand-written pro se Complaint alleging a violation of his rights under the Eighth Amendment to the United States Constitution. Plaintiff sues five Correctional Officers (Lieutenant Larangeira, Lieutenant Open, Officer Ledoux, Officer Nichols and Officer Morales), Corrections Director Patricia Coyne-Fague and Corrections Inspector Frank Levesque. (ECF No. 1 at p. 2-3, 11). 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 No. 2) is GRANTED.

         Having 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.

         Standard of Review

         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 (1^st 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 (1^st 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 (5^th Cir. 1986).

         Discussion

         I 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.

         A. Rules 8 and 10, Fed. R. Civ. P.

         Pursuant 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 (2^nd Cir. 1988) (pleading must allege facts sufficient to allow defendants to prepare a defense against such claims).

         In 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 (1^st 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).

         Applying this standard, Plaintiff's Complaint does not contain enough facts to state any plausible constitutional violations at this time. Plaintiff alleges “crual [sic] unusual punishment” but his factual allegations are scattered and unclear. His Complaint is piecemeal and does not clearly set forth who did what and when. He alleges in one place that the events in question took place on July 21[, 2019] and in another place that it was May 21, 2019. (Compare ECF No. 1 at p. 5 with ECF No. 1-2 at p. 1). He states in conclusory fashion that he was “placed in isolation seg with no AC” by Officer Ledoux and Lieutenant Larangeira. (ECF No. 1 at p. 5). He alleges that Officer Morales searched his cell and he was taken to “seg.” (ECF No. 1-2 at p. 1). He claims that Officer Morales “packed [his] cell” and “got rid of evidence [sic] by putting everything in bags.” Id. He does not identify the nature of this “evidence.” He claims that he was subject to “in-human” [sic] conditions and that “Officer Ledoux would not flush [his] toilet.” Id.^[1] Finally, he claims that Lieutenant Larangeira did ...