Opinion
C.A. No. 02-438 T
January 26, 2004
Report and Recommendation
Confined at the Adult Correctional Institutions, Cranston, Rhode Island, pro se plaintiff Jose Franco filed a Complaint pursuant to 42 U.S.C. § 1983. Plaintiff names as a defendants Lieutenant Getter, Michael Reynolds, C/O Simpson, C/O Guilbuilt, and A.T. Wall, employees or officials at the Rhode Island Department of Corrections ("DOC"). For the reasons that follow, I find that defendant Getter should be dismissed from this case.
Discussion
Plaintiff filed the instant Complaint on October 4, 2002. In the Complaint, plaintiff alleges that he an indigent inmate, and, as a result, relies on DOC officials to mail his mail. After the necessary procedures are followed, plaintiff indicates that he is supposed to receive a receipt showing that his mail has indeed been mailed. Plaintiff indicates that he has not been receiving receipts, and that C/O Simpson is the one responsible. Plaintiff indicates that C/O Simpson confiscates his mail and takes it to the "brass." Plaintiff asserts that he has filed grievances with respect to this issue but has been unsuccessful in resolving it. Accordingly, plaintiff filed this suit seeking an award of monetary damages.
Section 1915A of Title 28 of the United States Code directs the Court to review prisoner complaints before docketing or soon thereafter to identify cognizable claims or dismiss the complaint if it fails to state a claim upon which relief can be granted. See 28 U.S.C. § 1915A; See also 28 U.S.C. § 1915(e)(2). Pursuant to this directive, this Court finds that the instant complaint fails to state a claim upon which relief can be granted as to defendant Getter.
Section 1915A provides, in pertinent part: (a) The court shall review . . . a complaint in a civil action in which a prisoner seeks redress. . . . (b) On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint — (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915A(a) and (b) (emphasis added).
The Complaint essentially alleges that the plaintiff is not receiving a receipt for his outgoing mail, and that C/O Simpson has, on occasion, confiscated his mail and taken it to the "brass." Plaintiff, however, has not set forth facts alleging that Getter is any way responsible for his problems with the mail. Indeed, Getter is not mentioned anywhere in the Complaint, other than being identified by the plaintiff as a "defendant." Plaintiff may not maintain this action against Getter without setting forth facts connecting her to an alleged wrongdoing. Fernandez v. Chardon, 681 F.2d 42, 55 (1st Cir. 1982): Lopez Morales v. Otero de Ramos, 725 F. Supp. 106, 106-107 (D.P.R. 1989). A theory of respondeat superior, if that is what plaintiff alleges, will not suffice. Polk County v. Dodson, 454 U.S. 312, 325 (1981); See also O'Neil v. Baker, 210 F.3d 41, 47 (1st Cir. 2000).
Since the plaintiff has failed to allege facts connecting Getter to any alleged wrongdoing, I find that defendant Getter should be dismissed from this action pursuant to Fed.R.Civ.P. 12(b)(6). I so recommend.
Conclusion
Accordingly, I recommend that defendant Getter should be dismissed from this action pursuant to Fed.R.Civ.P. 12(b)(6). Any objection to this report and recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b). Failure to file timely, specific objection to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1 st Cir. 1980).