United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, United States Magistrate Judge.
April 25, 2019, Plaintiff Rich Buzon, formerly a prisoner at
the Adult Correctional Institutions (“ACI”),
filed a pro se complaint against seven Rhode Island
Department of Corrections (“RIDOC”) employees.
ECF No. 1. His claims are based on events that occurred
inside the ACI. The primary allegation is that, having
achieved sobriety despite serious opioid addiction due to the
ACI's medically assisted treatment program and seeking
work release, he entered into an agreement with a
correctional officer to be a confidential informant. However,
when he acquired heroin from another inmate, which was found
in his cell, RIDOC officials disclaimed any agreement
permitting the acquisition and possession of heroin inside
the ACI; in response, Plaintiff exploded in rage. He was
sanctioned with thirty days segregation for possession of
heroin and reclassified to High Security. In addition, he
alleges that his belongings were thrown around his cell and
into a sink during a search, that on one occasion, his wrists
were hurt by the rough removal of hand cuffs (resulting in
medical treatment involving the application of an ice pack)
and that he received a retaliatory false booking for passing
another inmate prescribed Suboxone, when there actually was
only saliva on his finger.
Defendants filed their responsive pleading, on September 11,
2019, Plaintiff signed and then filed (on September 16, 2019)
an amended complaint, together with a motion to
amend; the amended pleading (including attached
documents) tells the same story in far greater detail but
also includes post-complaint events, including a correctional
officer's use of foul language towards Plaintiff,
resulting in an investigation of the officer. Now pending
before the Court are Plaintiff's motion for temporary
restraining order (ECF No. 6) and Defendants' motion to
dismiss (ECF No. 28). Both motions were referred to me for
report and recommendation. 28 U.S.C. § 636(b)(1)(B).
motion for temporary restraining order (“TRO”)
asks the Court for an order barring ACI officials from
harassing, threatening or assaulting him, requiring them to
house him in the proper level of security, and mandating that
they must stay one thousand feet away from him. The
injunctive relief sought by the TRO motion is entirely
premised on Plaintiff's ongoing status as a prisoner.
Defendants' motion to dismiss contends that
Plaintiff's complaint fails to state a claim that
plausibly alleges conduct by ACI officials serious enough to
transgress the Eighth Amendment.
motion to dismiss was filed on September 17, 2019, and duly
served on Plaintiff. Plaintiff did not file any objection.
The due date for his objection (October 1, 2019) came and
went. On October 9, 2019, the pending motions were referred
to me and, on the same day, notice was sent to Plaintiff
scheduling a hearing on them to be held on November 12, 2019.
As the Court later learned, on October 17, 2019, Plaintiff
was released from the ACI. Despite his obligation pursuant to
DRI LR Gen 205(d)(1) to notify the Court of his new address,
Plaintiff did not supply the Court with his address or any
contact information. At the November 12, 2019, hearing,
Defendants appeared but Plaintiff did not appear. Mindful of
his pro se status, the Court rescheduled the oral
argument for December 18, 2019, and directed Defendants to
supply the last known address for Plaintiff, which they did.
In advance of the new hearing, the notice was mailed to
Plaintiff's last address as known to RIDOC. At the second
hearing, Defendants appeared again and Plaintiff again failed
to appear. At the second hearing, invited by the Court,
Defendants orally supplemented their motion to dismiss by
adding a motion to dismiss based on Plaintiff's failure
to prosecute pursuant to Fed.R.Civ.P. 41(b).
Plaintiff's release from custody, his motion for TRO is
moot and should be denied. And consistent with the
Court's obligation to consider the merits of a
dispositive motion attacking the pleading of a pro
se litigant despite the absence of an opposition,
O'Rourke v. Baystate Fin. Servs., Civil Action
No. 12-559 S, 2014 WL 690189, at *2 (D.R.I. Feb. 20, 2014), I
have reviewed it and find that Defendants' motion to
dismiss is well-founded in that Plaintiff's lengthy and
detailed pleadings (both the original and the amended
complaint) simply do not allege facts plausibly setting out
cruel and unusual punishment in violation of the Eighth
Amendment, which requires wrongdoing that is objectively
“harmful enough” to establish a constitutional
violation, as well as that subjectively involves actions by
prison officials that intentionally or in reckless disregard
inflict “unnecessary and wanton” pain or
punishment. See Hudson v. McMillian, 503 U.S. 1, 8
(1992); Staples v. Gerry, 923 F.3d 7, 13 (1st Cir.
2019) (quoting Wright v. Goord, 554 F.3d 255, 268
(2d Cir. 2009)); Moore v. Weeden, C. A. No. 09-434M,
2012 WL 733837, at *7 (D.R.I. Mar. 6, 2012). Plaintiff's
core claim - breach of an informant agreement - has
specifically been held to be insufficient as a matter of law
to state a claim of a transgression of constitutional norms.
Corgan v. Nev. Dep't of Public Safety, No.
3:14-CV-00692-RCG-WGC, 2015 WL 4132231, at *14 (D. Nev. July
8, 2015); see White v. McBurney, C. A. No.
18-00261-MSM-PAS, 2019 WL 5894071, at *3 (D.R.I. Nov. 12,
2019) (dismissing complaint that raises specter of
retaliation in connection with failure of supposed
cooperation agreement; “speculation nor
‘possibility' of misconduct is sufficient”).
on the foregoing, I recommend that Plaintiff's motion
(ECF No. 6) for temporary restraining order be denied and
Defendants' motion to dismiss (ECF No. No. 28) for
failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) be
granted. I also recommend that Defendants' oral motion to
dismiss for lack of prosecution based on Fed.R.Civ.P. 41(b)
be granted, operating as an adjudication on the merits.
objection to this report and recommendation must be specific
and must be served and filed with the Clerk of the Court
within fourteen (14) days of its receipt. See
Fed.R.Civ.P. 72(b)(2); DRI LR Cv 72(d). Failure to file
specific objections in a timely manner constitutes waiver of
the right to review by the district judge and the right to
appeal the Court's decision. See United States v.
Lugo Guerrero, 524 F.3d 5, 14 (1st Cir. 2008); Park
Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605
(1st Cir. 1980).
 Because Plaintiff is pro se,
I employed a liberal construction of his complaint. See
Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Instituto de
Educacion Universal Corp. v. U.S. Dep't of Educ.,
209 F.3d 18, 23 (1st Cir. 2000).
 This motion to amend was not necessary
in that Fed.R.Civ.P. 15(a) permitted Plaintiff to amend as of
right. By separate text order, the motion to amend has been
granted. The Court's consideration of Defendants'
motion to dismiss is based on the allegations in ...