Opinion
C.A. No. 00-562 L
April 9, 2002
Report and Recommendation
Plaintiff Ashanti Shakur (also known as Wayne Lee), an inmate housed at the Adult Correctional Institution ("ACP"), in Cranston, Rhode Island, has filed a Complaint pursuant to 42 U.S.C. § 1983 alleging a violation of his First, Eighth and Fourteenth Amendments rights. Plaintiff names as defendants officials and employees at the ACI.
This matter is currently before the Court on the following motions: (1) Walter Whitman's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), which plaintiff has not opposed, and (2) plaintiffs motion for a preliminary injunction. These matters 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 defendant's motion be granted, and plaintiffs motion be denied.
I. Motion To Dismiss, Pursuant to Fed.R.Civ.P. 12(b)(6) .
Background
The following are the factual allegations culled from the Amended Complaint which are taken as true for purposes of the instant motion:
Plaintiff Ashanti Shakur, an inmate incarcerated at the Adult Correctional Institution in Cranston, Rhode Island, is serving a twenty year sentence imposed by a New Jersey court after being convicted of felony armed robbery. The New Jersey Department of Corrections transferred the plaintiff to the Rhode Island Department of Corrections ("RI DOC") pursuant to an agreement between the two jurisdictions.
On or about December 29, 1999, Shakur with three other inmates, initiated a lawsuit in the Rhode Island Superior Court against prison officials. In the course of the litigation, Shakur and his co-plaintiffs requested that the RI DOC produce certain documents. Pursuant to that request, Paul Mancini, Esq., legal counsel for the RI DOC, produced the documents requested. Some of these documents identified the plaintiff as being a confidential informant with the Federal Bureau of Investigation with a contract out on his life. Although this information was requested by Shakur and his co-plaintiffs, plaintiff asserts that officials intentionally released the information in retaliation for his "jail house lawyer activism and militancy." Amended Complt. ¶ 18.
Plaintiff asserts that his co-plaintiffs have disseminated the information that he is a confidential informant throughout the prison, creating a threat on his personal safety. In fact, Plaintiff avers that he has received threats from other prisoners.
According to Shakur, in response to the threats, officials at the RI DOC have isolated him and placed him on single recreation status, in the High Security Center. Plaintiff however contends that he should be placed in the protective custody unit in the Intake Service Center.
Plaintiff has filed suit to seek relief. As redress, plaintiff seeks a court order directing the RI DOC to place him in the protective custody unit in the Intake Service Center, costs, and damages in the amount of $1.00 for each defendant. Defendant Whitman has moved to dismiss. Plaintiff has not opposed the motion.
Disussion
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 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, 45-6, 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 federal rights.
Plaintiff has brought suit pursuant to 42 U.S.C. § 1983. Section 1983 provides, in pertinent part:
Every person who, under the color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .42 U.S.C. § 1983.
Thus, in order to maintain a section 1983 action, the conduct complained must be committed by a person acting under color of state law and the conduct must have deprived the plaintiff of a constitutional right or a federal statutory right. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923 (1980); see also Baker v. McCollan 443 U.S. 137, 99 S.Ct. 2689 (1979) (constitutional deprivations); Maine v. Thiboutot 448 U.S. 1, 100 S.Ct. 2502 (1980) (statutory deprivations).
Here, there is no dispute that the named defendant acted under the color of law. However, plaintiffs Amended Complaint contains no factual allegations whatsoever connecting defendant Whitman to any alleged wrongdoing. The only mention plaintiff makes of this defendant in the Amended Complaint is to refer to him as a defendant in the caption and in a paragraph where he identifies all of the defendants. Plaintiff may not attribute claims against Whitman without alleging that he actually participated in the alleged constitutional wrongdoing. Lopez Morales 725 F. Supp. 106, 106-107 (D.P.R. 1989). In other words plaintiff must present facts linking this defendant to the alleged wrongdoing. See id. A theory of respondeat superior, if that is what plaintiff alleges, will not suffice. Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 453 (1981); See also O'Neil v. Baker, 210 F.3d 41, 47 (1st Cir. 2000); Bowen v. City of Manchester, 966 F.2d 13, 20 (1st Cir. 1992). Accordingly, defendant Whitman's motion to dismiss should be granted. I so recommend.
II. Plaintiffs Motion for a Preliminary Injunction.
Plaintiff has also filed with this Court a motion for a preliminary injunction, pursuant to Fed.R.Civ.P. 65. In considering whether to grant or deny such a motion, this circuit employs a quadripartite test, taking into account (1) the likelihood of the movant's success on the merits; (2) the potential for irreparable injury; (3) the relevant balance of hardships if the restrainer does not issue; and (4) the effect on the public interest of a grant or denial of the motion. Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir. 1991). A failure to demonstrate all four factors results in a denial of the motion. See Jackson v. Fair, 846 F.2d 811, 814 (1st Cir. 1988)
Here, the District Court has already dismissed a majority of the defendants from this action. See Order, Granting Defendants Wall and Mancini's Motion for Summary Judgement, Senior Judge Ronald R. Lagueux, February 26, 2002; See also Order, Granting DiNitto, Mallet, and Weeden's Motion to Dismiss, January 10, 2002, Senior Judge Ronald R. Lagueux. The only remaining defendant in this action is Whitman. And, as stated above, the claims against him must fail. Accordingly, plaintiff has failed to demonstrate the likelihood of success on the merits, and his motion for a preliminary injunction should be denied. I so recommend.
Conclusion
For the reasons stated above, I recommend that defendant Whitman's motion to dismiss be granted, and plaintiffs motion for a preliminary injunction be denied. 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); Local Rule 32. 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 Co., 616 F.2d 603 (1st Cir. 1980).