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 Plaintiffs Application to
Proceed In Forma Pauperis ("IFP") (ECF No. 2)
pursuant to 28 U.S.C. § 1915. On November 25. 2019,
Plaintiff Vernon Riley, an A.C.I, inmate, filed a
hand-written pro se Complaint alleging violations of 42
U.S.C. § 1983 against Correctional Officer Mason.
Plaintiffs 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. Based on my
review of the IFP Application and the prisoner trust fund
account statement, I conclude Plaintiff has satisfied the
requirements of 28 U.S.C. § 1915(a)(1); accordingly, if
the Complaint survives screening, I will grant the IFP Motion
and calculate the initial filing fee that must be paid before
the case may proceed. However, because of the IFP
application, the Court is required to review the case 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
monetaiy relief against a defendant who is immune from such
relief." For the reasons discussed below, I recommend
that Plaintiffs 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
recommend that Plaintiffs 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
Plaintiffs 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 Plaintiffs
allegations and legal claims since they have been put forth
by a prose litigant. See Haines v. Kerner, 404 U.S.
519, 520-521 (1972). However, even applying these liberal
standards of review to Plaintiffs Complaint, dismissal is
required, but without prejudice to refiling after exhaustion
of administrative remedies.
Complaint is bare bones. He alleges that Correctional Officer
Mason has been harassing him "for quite some time
now" and that he is "tired of it." (ECF No.
1-2 at p. 1). He further states that "he assaulted me
while removing the hand cuffs by twisting my wrist to the
point that it hurts." Id. He states that the
incident occurred on November 18th, 2019 at 9:30
a.m. and in describing his "injuries" he stated
that that there was "no medical needed." (ECF No. 1
at p. 5). He claims Officer Mason should be suspended and
sues him for harassment, assault, mental anguish and cruelty.
He states that he filed a grievance and is "still
awaiting" the result of his grievance. Id. at
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
Plaintiff indicates in his Complaint that filed a grievance
concerning the events underlying his claims. (ECF No. 1 at p.
7). When asked on the Complaint form about the
"result" of his grievance, he indicates "still
awaiting." Id. These assertions of Plaintiff
are more than sufficient to support a non-exhaustion finding
as a matter of law. Plaintiff did not exhaust the. grievance
with the A.C.I., and has no valid excuse for not doing so
before filing this Complaint. Because the PLRA mandates that
Plaintiff exhaust his administrative remedies within the
correctional facility before coming to this Court, Plaintiffs
failure to do so requires that this Complaint be DISMISSED
without prejudice due to non-exhaustion.
reasons stated, Plaintiffs Motion to Proceed In Forma
Pauperis (ECF No. 2) is DENIED without prejudice. In
addition, I further recommend that Plaintiff s Complaint (ECF
No. 1) be DISMISSED WITHOUT PREJUDICE due to non-exhaustion
of administrative remedies pursuant to the PLRA.
objection to this Report and Recommendation must be specific
and must be filed with the Clerk of the Court within fourteen
days of its receipt. See Fed.R.Civ.P. 72(b); LR Cv 72(d).
Failure to file specific objections in a timely manner
constitutes waiver of the right to review by the District
Court and the right to appeal the District Court's
decision. See United States v. Valencia-Copete, ...