United States District Court, D. Rhode Island
VICTOR A. TAVARES, Plaintiff,
LIEUTENANT MACOMBER, C.O. SPADONI, C.O. ANTONELLI, C.O. SANTA-GATA, LIEUTENANT DIVINE, DEPUTY WARDEN MOORE, and WARDEN ACETO, Defendants.
REPORT AND RECOMMENDATION
Patricia A. Sullivan, United States Magistrate Judge.
pending before the Court are a twinned set of motions to
dismiss the Second Amended Complaint (“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.
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
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.
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.
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,
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.
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
STANDARD OF REVIEW
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.
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.
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).