Opinion
C.A. No. 00-194 T
February 5, 2001
Report and Recommendation
Plaintiff Robert R. Girard, pro se, has filed a Complaint pursuant to 42 U.S.C. § 1981, 42 U.S.C. § 1983 and/or Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). Plaintiff names as defendants the "Donald Wyatt Detention Facility" and its "employees both known and unknown."
Plaintiff does not name any specific defendant. See Complt. 6.
Cornell Corrections of Rhode Island, Inc., a non-party to this instant litigation, has filed with the Court a motion to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6) and has supplied the court with an affidavit. Plaintiff objected to the instant motion, and has also supplied the Court with affidavits.
The non party movant should be added as a party defendant under Rule 19 of the Federal Rules of Civil Procedure
This matter has been referred to me pursuant to 28 U.S.C. § 636 (b)(1)(B) for a report and recommendation. For the reasons that follow, I recommend that the motion to dismiss pursuant to Rule 12(b)(6) be granted. I have excluded from consideration all of the affidavits submitted by the parties. See Fed.R.Civ.P. 12(b).
I. Background
In his Complaint, Plaintiff Robert R. Girard asserts the following allegations, which are taken as true for purposes of the instant motion:
Plaintiff was detained at the Donald Wyatt Detention Facility ("Wyatt") in Central Falls, Rhode Island from August 15, 1995 through February 19, 1996. During plaintiffs' incarceration at Wyatt, plaintiff asserts the "defendants": (1) opened, inspected, read, and tampered with his mail; (2) intercepted, monitored, and recorded his telephone calls; (3) forced the plaintiff to use Wyatt's phone carrier, which failed to list prices, forced him to call collect and overcharged for calls; (4) housed the plaintiff with other inmates "who were both violent and predators;" (5) failed to provide nutritious meals to the inmates; (6) interfered with the plaintiffs' right to practice his religion by preventing the plaintiff from possessing "rosary beads, scapulars and a Douay Rheims Bible;" (7) interfered with religious services by conducting strip searches before and after said services; (8) permitted female employees to watch the plaintiff while showering and "performing other personal things;" (9) interrogated the plaintiff with the Rhode Island State Police, the Central Falls Police, and U.S. Marshals Service over a five day span without counsel present although he had so requested; and (10) practiced deliberate indifference toward each inmates' medical needs by providing substandard medical care.
Based upon the these allegations, plaintiff asserts that the defendants, the "Donald Wyatt Detention Facility" and "its employees both known and unknown" violated his First, Fourth, Sixth, Eighth, Ninth, Thirteenth and Fourteenth Amendment rights to the U.S. Constitution.
Cornell Corrections of Rhode Island, Inc. ("Cornell Corrections"), has moved to dismiss the Complaint in its entirety for a failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12 (b)(6). In support of its motion, Cornell Corrections has submitted the affidavit of Michael Gilliland, Director of the Wyatt facility.
Plaintiff Robert Girard has objected to the motion to dismiss. In support of his objection, the plaintiff has submitted the affidavits of Luis Guilamo, John Doherty, Glenn LaCedra, Clinton McNeil, and Rita Girard.
Although both parties have supplied the Court with affidavits, the Court, in its discretion, has not considered those affidavits for purposes of the instant motion. See Fed.R.Civ.P. 12(b). Thus, the motion will be treated as a motion to dismiss, pursuant to Rule 12(b)(6), andnot as one for summary judgement. See id.
II. Discussion
A. Rule 12(b)(6) Standard.
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of actions which fail to state a claim upon which relief can be granted. In ruling on a motion filed under Rule 12(b)(6), the court must "accept the well pleaded factual averments of the *** complaint as true, and construe these facts in the light most favorable to the [plaintiff]."Chongris v. Board of Appeals, 811 F.2d 36, 37 (1st Cir. 1987). A Rule 12 (b)(6) motion will only be granted when, viewed in this manner, it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957).
Under a Rule 12(b)(6) motion, "a reviewing court is obliged neither to credit bald assertions, periphrastic circumlocutions, unsubstantiated conclusions, or outright vituperation, nor to honor subjective characterizations, optimistic predictions, or problematic suppositions."United States v. AVX Corp., 962 F.2d 108, 115 (1St Cir. 1992). Unverifiable conclusions, not supported by the stated facts, deserve no deference. Id. Thus in ruling on the motion to dismiss, the pertinent inquiry is whether plaintiffs' complaint sets forth sufficient factual allegations which, if proven, would support his claims of a deprivation of protected federal rights.
B. Cornell Corrections' Motion to Dismiss Should be Granted on the Basis that the Statute of Limitations Has Expired.
In its motion, Cornell Corrections moved to dismiss on the basis that the statute of limitations has expired with respect to plaintiffs' claims. Plaintiff, in his opposition to the motion to dismiss, asserts that he timely filed the instant action. I disagree, and find that Cornell Corrections' motion to dismiss should be granted.
A state's personal injury statute of limitations governs action brought pursuant to 42 U.S.C. § 1981. See Goodman v. Luken Steel Co., 482 656, 660-62, 107 S.Ct. 2617, 2620-21 (1987); Johnson v. Rodriguez, 943 F.2d 104, 107 (1st Cir. 1991). A state's personal injury statute of limitations also applies in actions brought under 42 U.S.C. § 1983 and Bivens. See Owen v. Okure, 488 U.S. 235, 239, 109 S.Ct. 573, 576 (1989); Delgado-Brunet v. Clark, 93 F.3d 339, 342 (7th Cir. 1996);Industrial Contractors Corp. v. United States Bureau of Reclamation, 15 F.3d 963, 968 (10th Cir. 1994). Rhode Island's general personal injury statute of limitations is three years. See R.I. Gen. Laws 9-1-14. Thus, a three year statute of limitation applies to plaintiffs' claims in this case.
Here, plaintiffs' instant Complaint was filed with the clerk of court on April 18, 2000, for conduct that allegedly occurred between August 15, 1995 and February 19, 1996. The last possible date that the alleged conduct could have occurred is on February 19, 1996. Therefore, plaintiff had until February 19, 1999, to file this instant action. He did not do so. Plaintiff filed the instant Complaint on April 18, 2000, placing him beyond the applicable statute of limitations time period.
In response to this argument by Cornell Corrections, plaintiff avers that he filed his Complaint within the proper time. Plaintiff avers in his objection that he mailed to the Court the Complaint in December of 1997 via return receipt mail. Plaintiff provided the Court with what he asserts is a copy of the return receipt. However, the instant receipt does not demonstrate or otherwise show that the plaintiff mailed the instant Complaint to the Court. Additionally, the Court records indicate that no such Complaint was ever filed with the clerk of court.
Assuming arguendo, that the plaintiff mailed his Complaint in December 1997, plaintiffs' next correspondence with the Court was not until March 24, 2000. Thus, remaining unexplained is the plaintiffs' absence from this litigation since the plaintiff did not file any other document, or otherwise communicate with the Court until March 24, 2000. If plaintiff actually filed the complaint in December 1997, it would have been dismissed for his failure to prosecute this action in a timely fashion. Accordingly, I find plaintiffs' assertion, made in opposition to the motion, that he timely filed the complaint unpersuasive and that the instant action is time barred. I recommend a dismissal pursuant to Fed.R.Civ.P. 12(b)(6) on that basis.
This report does not reach the merits of plaintiffs' claims or the question of the existence of subject matter jurisdiction under 42 U.S.C. § 1983 or Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics 403 U.S. 388, 91 S.Ct. 1999 (1971). In the interests of judicial economy, I have limited this Report and Recommendation to so much of defendants' motion to dismiss based on the statute of limitations which precludes plaintiffs' claims.
III. Conclusion
Accordingly, for the reasons stated above, I recommend that Cornell Corrections' motion to dismiss the plaintiffs' Complaint be granted. Any objection to this report and recommendation must be specific and must be filed with the clerk of the court within ten days of receipt. Failure to file timely, specific objections 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 Company, 616 F.2d 603 (1St Cir. 1980).