Forbes v. Wall et al
Filing
25
MEMORANDUM AND ORDER granting 17 Motion to Dismiss for failure to state a claim as to Defendants AMARAL, BOUCHARD, DOYLE and WARD. Those Defendants are herewith DISMISSED from this case. So Ordered by Judge Mary M. Lisi on 8/6/2015. (A copy of the attached Memorandum and Order was forwarded to Plaintiff via first-class mail on 8/6/2015.) (Duhamel, John)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
DARCY W. FORBES, pro se,
v.
C.A. No. 14-322-ML
ASHBEL T. WALL, et al.
MEMORANDUM AND ORDER
The Plaintiff in this case of alleged retaliation1, Darcy W.
Forbes, (“Forbes”) was, at all times pertinent to his complaint,
incarcerated at the Adult Correctional Institution (“ACI”) in
Cranston, Rhode Island. The gravamen of Forbes’ case is that he was
“downgraded to Administrative C-Status” (apparently resulting in
the imposition of additional safety measures and the loss of
certain privileges) in retaliation for filing a grievance against
a correctional officer at the ACI. The case is before this Court on
the motion to dismiss by four of the remaining defendants (the
Defendants”).2 For the reasons set forth herein, that motion is
1
In his initial complaint (Dkt. No. 1), Forbes also asserted
claims for “failure to protect,” “negligent failure to protect,”
and “failure to classify.” On October 7, 2014, two of those claims
were dismissed with prejudice and the claim for “negligent failure
to protect” was dismissed without prejudice to being brought in
state court. Memorandum and Order (Dkt. No. 5 at 12-13).
2
The four defendants seeking to dismiss Forbes’ retaliation
claim against them are Lt. Thomas Doyle (“Doyle”), Clinical Social
1
GRANTED.
I.
Factual Background and Procedural Summary
According to Forbes’ Amended Complaint (the “Complaint,” Dkt.
No. 7), on January 17, 2014, he was moved from the ACI Intake
Service Center to the High Security Center. Complaint ¶ 14. At that
time,
Forbes
was
classified
as
“B-Status”
in
the
A-Module.
Complaint ¶ 15. On January 18, 2014, Forbes was moved to the DModule “based on the request he entered.” Complaint ¶ 17. As set
forth in Forbes’ original complaint (Dkt. No. 1), he “wrote a
request slip ... about Problems concerning his life and safety due
to threats he was receiving from other Inmates in A-Module & BModule & [he] ask [sic] to be Placed in Protective Custody.” Dkt.
No. 1 at ¶ 22. Forbes asserts that he was housed in D-Module for
sixty-six days, during which time he “never got into trouble or
discipline.” Complaint at ¶¶ 20, 21. He further alleges that he was
treated as a “disciplined inmate/management problem,” and that he
was denied an opportunity to speak with the shift commander or a
Worker Caitlin Bouchard (“Bouchard”), Anthony Amaral, and Intake
Services Coordinator John Ward (“Ward”). The other remaining
defendants to this suit are Lt. William Galligan, Lt. Robert
Sayles, and Correctional Officers Avelino Duarte, Clive Porter,
John Howard, and Steven Calise. Those six defendants have filed an
answer to the Amended Complaint, in which they deny the claims
against them and demand a trial by jury. (Dkt. No. 16). Claims
against the five other defendants, including the Director of the
Rhode Island Department of Corrections Ashbel T. Wall, Deputy
Warden Alfred Leach, Lt. Joshua Macomber, and Investigators David
Perry, William Begones, and Figerido were terminated on October 7,
2014, pursuant to this Court’s Memorandum and Order (Dkt. No. 5).
2
member of the special investigative unit “concerning more threats
on his life.” Complaint at ¶¶ 22, 25.
According to Forbes, on March 13, 2014, he filed a grievance
against Correctional Officer John Howard for being denied B-status
privileges. Complaint at ¶ 26. On March 25, 2014, Forbes was moved
from the D-Module and placed in the F-Module and his status was
changed to “Administrative Confinement” or “Admin C. status.”
Complaint at ¶¶ 30, 31. On May 8, 20143, Forbes appeared before the
Classification Board (the “Board,” on which the four Defendants
seeking dismissal of Forbes’ suit served as members). According to
Forbes, he “explained his situation concerning his safety and [he]
recommended to be placed on p.c. [protective custody] status.”
Complaint at ¶ 36. In accordance with the decision by the Board,
Forbes was classified as C-status. Complaint at ¶ 38. Although
Forbes
generally
alleges
that
keeping
him
at
the
C-status
level—which allows for fewer privileges than B status—is “treatment
done to inmates who file grievances and write D.O.C. [Department of
Corrections] staff up,” Complaint at ¶ 39, he offers no factual
support for, or additional examples of, such assertions.
On
July
15,
2014,
Forbes,
pro
se,
filed
a
four-count
complaint (Dkt. No. 1) against sixteen ACI officials and officers,
3
Forbes asserts that the Classification Board sat in April
2014; however, he does not disagree with the Defendants’ correction
that the Board met on May 8, 2014.
3
together with (1) an application to proceed without prepayment of
fees (Dkt. No. 2), and (2) a motion for appointment of counsel
(Dkt. No. 3). Following the required screening pursuant to 28
U.S.C. §1915(e)(2) and 28 U.S.C. 1915A(b), the Court dismissed two
of Forbes’ claims outright; it dismissed Forbes’ negligence claim
without prejudice to being brought in state court; and it permitted
Forbes to restate his retaliation claim. Any defendants not named
in Forbes’ original retaliation claim were also dismissed from the
case. Memorandum and Order (Dkt. No. 5).
On October 17, 2014, Forbes filed an amended complaint against
ten remaining defendants. (Dkt. No. 7). On April 21, 2015, six of
those defendants (Galligan, Sayles, Duarte, Porter, Howard, and
Calise) filed an answer to Forbes’ Complaint. On the same day, the
other four Defendants (Doyle, Bouchard, Amaral, and Ward) filed a
motion to dismiss the Complaint, pursuant to Fed. R. Civ. P.
12(b)(6). (Dkt. No. 17). Forbes submitted a response in opposition
to the motion on May 21, 2015 (Dkt. No. 20), to which no further
reply was received.
II.
Standard of Review
The dismissal of a complaint for failure to state a claim is
governed by Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Such dismissal is indicated “if the complaint does not set forth
‘factual allegations, either direct or inferential, respecting each
material
element
necessary
to
4
sustain
recovery
under
some
actionable legal theory.’” Lemelson v. U.S. Bank Nat. Ass’n, 721
F.3d 18, 22 (1st Cir. 2013)(quoting United States ex rel. Hutcheson
v. Blackstone Med., Inc., 647 F.3d 377, 384 (1st Cir.2011), cert.
denied, ––– U.S. ––––, 132 S.Ct. 815, 181 L.Ed.2d 525 (2011)
(quoting Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir.2008)).
In determining whether a motion to dismiss should be granted, the
Court considers whether “construing the well-pleaded facts of the
complaint in the light most favorable to the plaintiffs, the
complaint
states
a
claim
for
which
relief
can
be
granted.”
Ocasio–Hernandez v. Fortuno–Burset, 640 F.3d 1, 8 (1st Cir.2011).
To withstand a motion to dismiss, the “complaint must contain
sufficient factual matter ... to ‘state a claim to relief that is
plausible on its face.’” Katz v. Pershing, LLC, 672 F.3d 64, 72–73
(1st Cir.2012)(quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct.
1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007)). In other words, the plaintiff must “include ‘factual
content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.’” Katz v.
Pershing, LLC, 672 F.3d at 73 (quoting Haley v. City of Boston, 657
F.3d 39, 46 (1st Cir.2011) (quoting Iqbal, 129 S.Ct. at 1949)).
However, “[n]on-conclusory factual allegations in the complaint
must ...
be
treated as
true, even if
seemingly
incredible.”
Ocasio–Hernandez v. Fortuno–Burset, 640 F.3d at 12 (citing Iqbal,
5
129 S.Ct. at 1951)).
Generally, the Court does not consider any documents outside
of
the
complaint
without
express
incorporation,
see,
e.g.,
Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267
F.3d 30, 33 (1st Cir.2001)(“Ordinarily, a court may not consider
any documents that are outside of the complaint, or not expressly
incorporated therein, unless the motion is converted into one for
summary judgment”). However, the Court makes an exception “for
documents
the authenticity
of
which
are
not
disputed
by
the
parties; for official public records; for documents central to
plaintiffs' claim; or for documents sufficiently referred to in the
complaint.” Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993). Such
documents “merge[] into the pleadings” and may be considered by the
Court under a Rule 12(b)(6) motion to dismiss. Alternative Energy,
Inc., 267 F.3d at 33.
III. The Parties’ Positions
The Defendants assert that (1) Forbes had no constitutional or
statutorily
protected
classification
status;
liberty
(2)
interest
prison
in
his
prison-inmate
administrators
have
broad
discretion where to place prisoners within the correctional system;
(3) Forbes’ allegations that the Classification Board customarily
retaliates against inmates who file grievances by downgrading their
placement status is factually unsupported; and (4) based on Forbes’
expressed concerns about his personal safety, his classification as
6
C-status was consistent with RIDOC policy No 15.11-34.
Forbes’ response in opposition to the motion to dismiss, which
also includes an “answer for summary judgment,” addresses, at least
in part, some of the affirmative defenses raised by the six
defendants who are not part of the motion to dismiss now before the
Court. In general, Forbes maintains that he was downgraded to Cstatus and placed in segregation for forty days in retaliation for
filing a request slip to the Special Investigation Unit and/or for
complaining about Lt. Galligan. Forbes acknowledges, however, that
he had “enemy issues,” of which he had made the Defendants aware.
Forbes offers no further explanation or supportive facts for his
earlier
contention
that
inmates
are
generally
downgraded
in
retaliation for filing a complaint against staff.
IV.
Discussion
Forbes’ allegations against the Defendants are limited to the
assertion that the Defendants, in their capacity as members of the
Classification Board, “made [Forbes] remain on administrative CStatus,” which carried with it fewer privileges than B-status.
Complaint at ¶¶ 37, 38. Forbes concedes that he “explained his
situation concerning his safety” to the Board. Complaint ¶ 36. He
4
Defendants submitted a copy of the RIDOC Policy and Procedure
No. 15.11.3 as an exhibit to their motion to dismiss (Dkt. No. 171). The Policy provides that “[i]nmates are classified to “C”
category when their pattern of conduct ... [i]ndicates maximum
personal protection is required.” (Dkt. No. 17-1 at Page 1 of 6).
7
also notes that he “recommended to be placed on p.c. [protective
custody] status in C-Module with other p.c. inmates and p.c.
privileges.” Complaint at ¶ 36. In other words, Forbes sought a
change in placement by bringing concerns for his personal safety to
the attention of the ACI administration, but he was dissatisfied
with the implemented changes because they carried with them a loss
of certain privileges.
It is well established in Rhode Island that “the director of
the Department of Corrections has unfettered discretion in the
inmate-housing classification process.” Bishop v. State of Rhode
Island, 667 A.2d 275, 277 (R.I. 1995). The Classification Board,
pursuant to R.I. Gen. Laws 42-56-31, reviews a prisoner-inmate’s
records and recommends a security classification to the director.
The classification is put in effect after review and approval by
the director. If the director disapproves the recommendation, the
recommendation is returned to the Board for further study, review,
and recommendation. In the event the director again disapproves the
Board’s recommendation, the director’s decision is “final.” R.I.
Gen. Laws 42-56-31.
In
light
of
the
director’s
“total
and
exclusive
final
discretion to the classification and housing of persons committed
to his custody,” a prisoner-inmate has no liberty interest in his
classification. Bishop v. State of Rhode Island, 667 A.2d at 277.
Because “a protected state-created liberty interest within the
8
meaning of the due process clause of the Fourteenth Amendment
arises only when a state places substantive limits on official
discretion,” and given the clear mandate of unfettered discretion
set forth in § 42-56-31, it follows that there is no constitutional
or statutorily protected inmate liberty interest in Rhode Island’s
prison-inmate classification system. Bishop v. State of Rhode
Island, 667 A.2d at 277 (citing Kentucky Department of Corrections
v. Thompson, 490 U.S. 454, 462, 109 S.Ct. 1904, 104 L.Ed.2d 506
(1989));
McManus
v.
Wall,
29
Fed.
Appx.
618,
618
(1st
Cir.
2002)(“Rhode Island has not created a protected liberty interest in
its prison classification system.”). Accordingly, Forbes’ attempt
to change his classification by bringing suit against ACI officers
and officials is futile.
As to Forbes’ allegations that his classification to C-status
was done in retaliation for certain complaints he made, those
allegations are entirely unsupported. Forbes immediately raised
concerns about his personal safety when he was transferred from the
ACI Intake Service Center to the High Security Center and he was
promptly moved to a different module. Forbes then brought his
concerns to the attention of the Board and he was classified as Cstatus. Pursuant
classified
to
to
“C”
RIDOC
Policy
category
when
15.11-3, inmates
their
pattern
are
of
to
be
conduct
“[i]ndicates maximum personal protection is required.” Based on
Forbes’ stated concerns for his personal safety which he had
9
repeatedly raised to the ACI administration and before the Board
itself, there is nothing to indicate that his classification as Cstatus was anything other than a protective measure.
Finally, Forbes’ allegations that his classification was done
in retaliation or that “downgrading” to a specific classification
is routinely done in retaliation against complaining prisonerinmates is entirely unsupported.
Accordingly, the Court is of the
opinion that Forbes’ Complaint cannot withstand the Defendants’
motion to dismiss.
Conclusion
For the reasons stated herein, the motion to dismiss by
Defendants Doyle, Bouchard, Amaral, and Ward is GRANTED and those
Defendants are herewith dismissed from this case.
SO ORDERED.
/s/ Mary M. Lisi
Mary M. Lisi
Chief United States District Judge
August 6, 2015
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?