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Tavares v. Macomber

United States District Court, D. Rhode Island

December 9, 2019



          Patricia A. Sullivan, United States Magistrate Judge.

         Now pending before the Court are a twinned[1] set of motions to dismiss the Second Amended Complaint[2] (“SAC”) of Plaintiff Victor A. Tavares, a pro se prisoner incarcerated at Rhode Island's Adult Correctional Institutions (“ACI”). ECF Nos. 47, 53. Defendants, all officials of Rhode Island Department of Corrections (“RIDOC”), sued individually and in their official capacities, contend that Plaintiff's pleading fails to state a claim in that he has not set forth any conduct or omission by any of them that rises to the level of a constitutional violation. They ask the Court to dismiss the case with prejudice. The motions have been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons that follow, I recommend that the motions be granted unless Plaintiff is able to file a timely amendment that cures the identified deficiencies.

         I. BACKGROUND

         The claims in Plaintiff's SAC are brought pursuant to 42 U.S.C. §§ 1983, 1985(3) and 1986, based on alleged violations of the Eighth Amendment of the United States Constitution. U.S. Const. amend. VIII. The SAC is focused on three matters.

         First, Plaintiff is upset by RIDOC's handling of his “court clothes, ” described in the SAC as a three piece gray suit and white button-up shirt, and by the discipline imposed as a result of Plaintiff's arguing with the officer who told him the clothes were to be destroyed. ECF No. 24 ¶¶ 9-12, 18, 21, 23-24. Second, he complains of RIDOC officials' failure to prevent the fight involving him and another inmate and their use of “riot spray” to break up the fight, followed by their interference with medical treatment. Id. ¶¶ 13-17, 25-28. Third, he alleges that he has been in “solitary confinement” for twenty months with the lights on all night, and without “proper hygiene, food and adequate footwear.” Id. ¶¶ 19, 29-31.

         Regarding his court clothes, Plaintiff alleges that, in September 2018, he was given notice that his court clothes were to be destroyed. He argued, pointing out to a correctional officer that he had more court appearances and would need them. Id. ¶ 9. He was given three bookings for the single offense of arguing; RIDOC's failure to drop two of the charges and proceed on one only was a violation of RIDOC policy. Id. ¶¶ 9-10. The resulting discipline involved the loss of good-time credit. Id. ¶ 10, 23. After he was sanctioned and appealed, the time for destruction of the clothes was extended, but the discipline based on the three bookings was not altered. Id. ¶ II. The clothes were subsequently destroyed, and the good-time credit was not restored. Id. ¶ 21.

         The allegations regarding Plaintiff's fight with another inmate are somewhat confusing. With no explanation how or why, Plaintiff alleges that one of the Defendants who became “knowledgeable of a possible altercation failed to prevent it.” ECF No. 24 ¶ 25. After the fight began, RIDOC officials used “riot spray” instead of “pepper spray” to stop it. Id. ¶ 26. One officer instructed another to “juice him, ” “to punish Plaintiff while he was incapacitated.” Id. ¶ 27. After the fight was over and a nurse was on the scene to assist Plaintiff, one RIDOC official interfered with medical care by preventing the use of a rescue inhaler and bandages and ordered Plaintiff's hair to be cut. Id. ¶¶ 15, 28.

         Plaintiff's claim regarding solitary confinement is based on the allegation that “for the past twenty (20) month Defendant Warden Aceto has kept the Plaintiff in solitary confinement.” Id. ¶ 19. The SAC does not explain why, including whether Plaintiff was in disciplinary confinement for a defined term, perhaps because of the fight, whether he was being held apart from the general population of the ACI, perhaps to protect him from enemies, or whether he had been transferred to a higher security facility. During this confinement, Plaintiff alleges that the lights were kept on during the night. Id. ¶ 13. He also vaguely complains that “proper hygiene” and “adequate footwear” were not provided and his meal portions were shorted. Id. ¶ 29.

         Plaintiff alleges that these events violated his rights under the Eighth Amendment of the Constitution in that they amounted to “cruel and unusual punishment.” He asks the Court for injunctive relief, as well as for compensatory and punitive damages.


         To survive a motion to dismiss, a complaint must contain sufficient factual allegations to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. A complaint must give the defendant fair notice of what the claim is and the grounds on which it rests and must allege a plausible entitlement to relief. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555, 559.

         The plausibility inquiry requires the court to distinguish “the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited).” Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012). This two-pronged approach begins by identifying and disregarding statements in the complaint that merely offer “‘legal conclusion[s] couched as . . . fact[ ]'” or “[t]hreadbare recitals of the elements of a cause of action.” Iqbal, 556 U.S. at 1949-50 (quoting Twombly, 550 U.S. at 555). A plaintiff is not entitled to “proceed perforce” by virtue of allegations that merely parrot the elements of the cause of action. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). The task of dividing “the plausible sheep from the meritless goats” is accomplished through careful, context-sensitive scrutiny of a complaint's allegations. Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409, 425 (2014). The Court must then determine whether the factual allegations are sufficient to support “the reasonable inference that the defendant is liable for the misconduct alleged.” Haley v. City of Bos., 657 F.3d 39, 46 (1st Cir. 2011) (quoting Iqbal, 556 U.S. at 678). In considering a motion to dismiss a prisoner's claim that his constitutional rights have been violated, the court must be guided by the principle that “prison officials are to be accorded substantial deference in the way they run their prisons. Spratt v. R.I. Dep't of Corr., 482 F.3d 33, 40 (1st Cir. 2007). Nevertheless, this does not mean that courts may rubber stamp or mechanically accept the judgments of prison administrators. Id.

         The Court has 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, 520-21 (1972).

         III. ...

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