Forbes v. Wall et al

Filing 5

MEMORANDUM AND ORDER: DISMISSING Plaintiff's "failure to protect", "negligent failure to protect" and "failure to classify" claims. (The dismissal of the "negligent failure to protect" claim is dismissed w ithout prejudice to being brought in state court.) If Plaintiff so chooses, he may file an Amended Complaint containing only his "retaliation" claim. If Plaintiff decides to proceed with his retaliation claim and his 2 Application to Pro ceed In Forma Pauperis, he may file a certified copy of his Inmate Account Statement at the same time he files his Amended Complaint. (The Court will then rule on his Application.) -- Plaintiff's 3 Motion to Appoint Counsel is DENIED. So Ordered by Judge Mary M. Lisi on 10/7/2014. -- (A copy of the attached Memorandum and Order was forwarded to Plaintiff via first-class mail on 10/7/2014.) (Duhamel, John)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

DARCY FORBES,
Plaintiff,
vs.

CA 14-322-ML

ASHBEL T. WALL, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff Darcy Forbes, pro se, an inmate at the Adult Correctional Institutions (“ACI”), has
filed a Complaint (Doc. #1) pursuant to 42 U.S.C. § 1983 and related statutes, an Application to
Proceed without Prepayment of Fees and Affidavit (Doc. #2) (“Application”), and a Motion for
Appointment of Counsel (Doc. #3) (“Motion for Counsel”). The Court is required to screen the
Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1916A.
DISCUSSION
I.

Screening
In connection with proceedings in forma pauperis, Section 1915(e)(2), 28 U.S.C.,
directs the Court to dismiss a case at any time if the Court determines that the action
is, inter alia, frivolous or fails to state a claim on which relief may be granted. 28
U.S.C. § 1915(e)(2). Similarly, Section 1915A, 28 U.S.C., directs courts to screen
complaints filed by prisoners against a governmental entity, officer or employee and
dismiss such claims for identical reasons. 28 U.S.C. § 1915A(b).

Chase v. Chafee, No. CA 11-586ML, 2011 WL 6826504, at *1 (D.R.I. Dec. 9, 2011). The legal
standard for dismissing a complaint for failure to state a claim pursuant to §§ 1915(e)(2) and 1915A
is the same as the legal standard used for ruling on a 12(b)(6) motion. Id. at *2.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id.; see also Ocasio-Hernández
v. Fortuño-Burset, 640 F.3d 1, 13 (1st Cir. 2013)(“The relevant inquiry focuses on the
reasonableness of the inference of liability that the plaintiff is asking the court to draw from the facts
alleged in the complaint.”). “The plausibility standard is not akin to a probability requirement, but
it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at
678 (internal quotation marks omitted.”). However, “[w]here a complaint pleads facts that are
merely consistent with a defendant’s liability, it stops short of the line between possibility and
plausibility of entitlement to relief.” Id. (internal quotation marks omitted.). “In order to show an
entitlement to relief, a complaint must contain enough factual material ‘to raise a right to relief
above the speculative level on the assumption that all the allegations in the complaint are true ....’”
Ocasio-Hernández, 640 F.3d at 12 (quoting Twombly, 550 U.S. at 555).
“In making this determination, the Court must accept plaintiff’s well-pleaded factual
allegations as true and construe them in the light most favorable to plaintiff, although the Court need
not credit bald assertions, unverifiable conclusions or irrational factual allegations.” Chase, 2011
WL 6826504, at *2 (citing Iqbal, 556 U.S. at 678). Moreover, the Court must review pleadings of
a pro se plaintiff liberally. Estelle v. Gamble, 429 U.S. 97, 106 (1976).
II.

Complaint
In his Complaint Plaintiff names as Defendants sixteen officials and officers at the ACI,

including Ashbel T. Wall, Director of the Rhode Island Department of Corrections (“RIDOC”).
Plaintiff raises four claims in his Complaint: 1) failure to protect; 2) negligent failure to protect; 3)

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failure to classify him to protective custody; and 4) retaliation. As a result, Plaintiff alleges that he
has suffered serious emotional injuries. He seeks a declaratory judgment as well as compensatory
and punitive damages against each Defendant.
A.

Failure to Protect

Plaintiff claims that the failure of Director Wall, Deputy Warden Leach, Lieutenants
Macomber, Galligan, and Sayles, and Investigators Begones, Perry, and Figarido “to act on their
knowledge of a substantial risk of serious harm to Plaintiff violated his Eighth amendment right to
be free from Deliberate Indifference to his safety.” Complaint § 44. The facts supporting Plaintiff’s
allegations, which the Court accepts as true, are as follows.
On January 17, 2014, Plaintiff was moved from the Intake Service Center to the High
Security Center (“HSC”), A-Module, on B-Status. Id. ¶¶ 20-21. That same day, Plaintiff wrote a
request slip to an unnamed “assigned ‘Lieutenant’,” about problems concerning his life and safety
due to threats he was receiving from other inmates in A- and B-Modules. Id. ¶ 22. He asked to be
placed in protective custody. Id. On January 18th, the very next day, Lieutenant Sayles ordered that
Plaintiff be moved to D-Module, which Plaintiff describes as “a Mental Health block for Mentally
Ill Inmates.” Id. ¶ 23. He remained in D-Module from January 18, 2014 through March 25, 2014,
on B-status. Id. ¶¶ 24-25. Plaintiff alleges that while there, he was treated like a “Disciplined
Inmate.” Id. ¶ 25. During the entire time he was housed in D-Module Plaintiff wrote multiple
request slips concerning the same issues regarding his safety and again asking to be placed in
protective custody. Id. ¶ 26. He told the Defendants named in this count that other inmates were
making death threats against him, that he was going to be assaulted, and that threats were also made
against his wife and children. Id. ¶ 27. Plaintiff alleges that he was told “we don’t know what to

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do with you,” “you can’t go nowhere,” and “you’ll be Okay in D-Module.” Id. ¶ 28.
On February 25, 2014, Plaintiff filed a level One grievance about being housed in a mental
health block and not being placed in protective custody. Id. ¶ 31. He alleges that Lieutenant Sayles
refused to send Plaintiff a level II grievance form to file on the same issues mentioned above. Id.
¶ 32. On March 25, 2014, Plaintiff was moved to F-Module “by unknown Defendants” and placed
on C-Status.1 Id. ¶ 33. He does not state why this was done.2
A prison official’s “deliberate indifference” to a substantial risk of serious harm to an inmate
violates the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 828 (1994). As part of their
duty to provide humane conditions, prison officials must “take reasonable measures to guarantee the
safety of inmates,” id. at 832 (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)), including
protecting prisoners from violence at the hands of other prisoners, id. at 833; see also Calderón-Ortiz
v, Laboy-Alvarado, 300 F.3d 60, 64 (1st Cir. 2002)(“Prison officials must take reasonable measures
to guarantee inmates’ safety from attacks by other inmates.”). Farmer held that “a prison official
may be held liable under the Eighth Amendment for denying humane conditions of confinement
only if he knows that inmates face a substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it.” 511 U.S. at 847; see also id. at 844-45. Thus, prison
officials violate the constitutional conditions of confinement only if an inmate meets two
requirements. Calderón-Ortiz, 300 F.3d at 64. First, the deprivation alleged must be “objectively,
sufficiently serious.” Id. (quoting Farmer, 511 U.S. at 834). In a failure to protect case, the plaintiff
1

The status designation apparently refers to the privileges prisoners are allowed. See Complaint ¶
33 (noting that after being moved to F-Module, which Plaintiff does not describe, he was “Placed on Admin.
C-Status which is a downgrade from B-status.”).
2

Plaintiff makes no allegations regarding further threats to his safety while he was housed in F-

Module.

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must show that the conditions of incarceration pose a substantial risk of serious harm. Id. Second,
the plaintiff must show that: (1) the defendant knew of (2) a substantial risk (3) of serious harm and
(4) disregarded that risk. Id.
Not every injury suffered by a prisoner at the hands of another inmate gives rise to an Eighth
Amendment claim, however. Giroux v. Somerset Cnty., 178 F.3d 28, 32 (1st Cir. 1999); see also
Farmer, 511 S.Ct. at 845 (“prison officials who act reasonably cannot be found liable under the
Cruel and Unusual Punishment clause”); Burrell v. Hampshire Cnty., 307 F.3d 1, 8 (1st Cir.
2002)(“Any inquiry into the reasonableness of the prison officials’ actions ‘incorporates due regard
for prison officials’ unenviable task of keeping dangerous men in safe custody under humane
conditions.’”) (quoting Farmer, 511 U.S. at 845). Here, accepting Plaintiff’s allegations that he was
at risk of serious harm and that Defendants knew of the threats to his safety, it cannot be said that
they disregarded any risk thereto. As Plaintiff states, Lieutenant Sayles did, in fact, move Plaintiff
out of A-Module to D-Module, the day after Plaintiff made his first request to be placed in protective
custody because of his concerns for his safety. See Complaint ¶¶ 22-23. While it is clear from the
Complaint that Plaintiff was not happy with the conditions in D-Module, see id. ¶ 25, he
acknowledges that he was told that he would be “Okay in D-Module,” id. ¶ 28.
The Court concludes that Plaintiff has not shown that Defendants were deliberately
indifferent to the alleged risk(s) to Plaintiff’s safety. Plaintiff’s failure to protect claim is, therefore,
DISMISSED.
B.

Negligent Failure to Protect

Plaintiff alleges that Defendants Wall, Leach, Macomber, Galligan, Begones, Sayles, Perry,
and Figarido owed Plaintiff a duty of reasonable care to protect him from assaults by other prisoners;

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that they breached that duty by failing to provide protection when Plaintiff informed them of his fear
of being assaulted and showed them documents supporting his fear; and that the breach of duty
caused him serious emotional injury and damages. Id. ¶¶ 46-48. The only difference between this
claim and the previous one is the legal theory under which it is brought: in the former, a federal
constitutional violation (Eighth Amendment), and in the latter, negligence.
Regarding negligence claims brought pursuant to § 1983, the Supreme Court has stated:
In Daniels [v. Williams, 474 U.S. 327 (1986], we held that the Due Process Clause
of the Fourteenth Amendment is not implicated by the lack of due care of an official
causing unintended injury to life, liberty or property. In other words, where a
government official is merely negligent in causing the injury, no procedure for
compensation is constitutionally required.
Davidson v. Cannon, 74 U.S. 344, 347 (1986); see also id. (noting that petitioner claimed “only that
respondents ‘negligently failed to protect him from another inmate’”). As noted in Davidson, “the
protections of the Due Process Clause, whether procedural or substantive, are just not triggered by
lack of due care by prison officials.” 474 U.S. at 348 (citing Daniels); see also Williams v. City of
Boston, 784 F.2d 430, 434 (1st Cir. 1986)(“allegations of common law negligence, without more,
do not state a claim for deprivation of liberty without due process of law”); Jones v. Rhode Island,
724 F.Supp. 25, 33 (D.R.I. 1989)(“the acts or omissions of defendants must be alleged to have
constituted more than ordinary negligence or lack of due care to state a §1983 claim”). Accordingly,
Plaintiff’s negligence claim fails to state a claim on which relief may be granted pursuant to § 1983
and is DISMISSED without prejudice to being brought in state court.
C.

Failure to Classify to Protective Custody

Plaintiff claims that Lieutenant Doyle, Defendant Amaral, a counselor at HSC, Classification

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Chairman Ward, and Defendant Bouchard3 had knowledge of a substantial risk of serious harm to
Plaintiff’s life and failed to protect him by classifying him to protective custody in violation of the
Due Process Clause of the Fourteenth Amendment. Complaint ¶ 50. Plaintiff states that as a result
he suffered “serious emotional injuries.” Id. ¶ 51.
The four Defendants named in this count comprised the classification board before which
Plaintiff was brought in April, 2014, to be classified. Id. ¶¶ 34, 36. Plaintiff “explained his situation
concerning his safety,” id. ¶ 35, and recommended that he be placed in protective custody, id. He
was told that he was not going to protective custody. Id. ¶ 36.
The Supreme Court has recognized that:
States may under certain circumstances create liberty interests which are protected
by the Due Process Clause. But these interests will be generally limited to freedom
from restraint which, while not exceeding the sentence in such an unexpected manner
as to give rise to protection by the Due Process Clause of its own force, nonetheless
imposes atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.
Sandin v. Connor, 515 U.S. 472, 483-84 (1995)(internal citations omitted).
Rhode Island has not created a liberty interest in the RIDOC’s classification system. See
Bishop v. State, 667 A.2d 275, 278 (R.I. 1995)("Rhode Island has not enacted any statute or
regulation that gives rise to any statutory inmate liberty interest in its prison-inmate classification
system."); see also DeCiantis v. R.I. Dep’t of Corrs., 840 A.2d 1090, 1092 (R.I. 2003)(upholding
Bishop); accord Carillo v. Moran, No. C.A. 77-0283L, 1993 WL 389383, at *2 (D.R.I. Aug. 11,
1993)(stating, in context of summary judgment recommendation on plaintiff's reclassification claim,
that "Rhode Island has not created any liberty interest which has been violated ..."). Rather, the

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Plaintiff identifies her simply as “Mental Health at High Sec.” Complaint § III.

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Director of the RIDOC has "unfettered final discretion over the classification and housing of prisoninmates in [Rhode Island]." Bishop, 667 A.2d at 277.
Rhode Island General Laws § 42-56-31 provides that:
It shall be the duty of the classification board to review all studies made of each
prisoner during the period of his or her reception and from time to time thereafter as
shall be necessary to further the purposes of this chapter; and to recommend to the
director the security classification and rehabilitation program for the person. The
director, or his or her designee, shall review the recommendation and, if her or she
shall approve it, he or she shall cause the recommendation to be put into effect. In
the event that he or she shall disapprove the recommendation, he or she shall request
the board to make further study and review. In the event that the director, or his or
her designee, shall disapprove further recommendation, the decision shall be final.
R.I. Gen. Laws § 42-56-31 (2006 Reenactment); see also §§ 42-56-30, 42-56-32. In other words,
full discretion lies with the classification board and, ultimately, Director Wall. See Letourneau v.
Wall, C.A. No. 12-848-M, 2013 WL 2181294, at *3 (D.R.I. May 20, 2013)(“A protected statecreated liberty interest within the meaning of the due process clause of the Fourteenth Amendment
arises only when a state places substantive limits on official discretion, which require that a
particular outcome be reached upon a finding that the relevant criteria have been met .... Rhode
Island has not enacted any statute or regulation that gives rise to any statutory inmate liberty interest
in its prison-inmate classification system.”)(quoting Bishop, 667 A.2d at 278)(alteration in
original)(internal quotation marks omitted).
Because Plaintiff has no liberty interest in his classification, he has no right which could be
violated by not classifying him to protective custody. Accordingly, Plaintiff's failure to classify to
protective custody claim fails to state a claim upon which relief may be granted and is DISMISSED.
D.

Retaliation

Plaintiff’s retaliation claim presents a different scenario. Plaintiff makes several allegations

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alleging retaliation against him by prison officers:
(1) The refusal of Correctional Officers (“C/Os”) Porter and Calise to file request slips to
speak with the Special Investigations Unit (“SIU”) and grievance(s) on other officers
constituted retaliation for petitioning for redress of grievances and therefore violated the
Eighth Amendment under cruel and unusual punishment, Complaint ¶ 52;
(2) The refusal of Lieutenant Sayles to provide Plaintiff with grievance slips to challenge
prison regulations and, presumably, to file against prison staff4 constituted retaliation for
petitioning the government for redress of grievances and therefore violated the First
Amendment, id. ¶ 53;
(3) The refusal of C/O Howard to allow Plaintiff to speak with a lieutenant and SIU
constituted retaliation in violation of the Fourteenth Amendment under the Due Process
clause, id. ¶ 54; and
(4) Plaintiff’s transfer to segregation by C/O Duarte and Lieutenant Galligan for being under
investigation for “writing them up”5 constituted retaliation and violated the Eighth
Amendment under cruel and unusual punishment, id. ¶55.
Because Plaintiff is proceeding pro se, the Court reads his Complaint generously. Estelle,
429 U.S. at 106. Having done so, the Court finds that Plaintiff has not yet pled “factual content that
allows the court to draw the reasonable inference that the defendant[s] [are] liable for the misconduct
alleged.” Iqbal, 566 U.S. at 678. However, it is possible that he may be able to state a claim to
relief that is “plausible on its face,” id., if he provides the Court with more information supporting
4

Plaintiff’s exact phrasing is “to challenge prison regulations against prison staff[.]” Complaint ¶ 53.

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Plaintiff states that “No One has to[ld] Plaintiff why he is in segregation,” but then alleges that C/Os
Duarte and Calise told him that he was there “for writing Lt. Galligan up.” Complaint ¶ 43.

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his allegations of retaliation. Plaintiff, therefore, shall be allowed to file an amended complaint
which contains sufficient factual content to state a claim that is facially plausible.6
E.

Conclusion re Complaint

To summarize, Plaintiff’s failure to protect claim does not “contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678
(internal quotation marks omitted). Accordingly, it is DISMISSED. Plaintiff’s negligent failure to
protect claim is not actionable under § 1983; therefore it is also DISMISSED.7 Plaintiff’s failure
to classify to protective custody claim fails because Plaintiff has no liberty interest in his
classification. It, too, is DISMISSED. Plaintiff’s retaliation claim, however, is potentially viable
provided he files additional factual content to supplement his allegations.
If Plaintiff wishes to press his retaliation claim, he may file an amended complaint containing
only the retaliation claim. The Court will then screen the amended complaint and determine whether
it contains sufficient factual matter to state a claim on which relief may be granted that is plausible
on its face. Id.
Defendants not named in Plaintiff’s retaliation claim should not be included in the amended
complaint and are hereby DISMISSED from the action.8

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In the last paragraph of his retaliation claim, in addition to the Defendants mentioned above,
Plaintiff lists Defendants Bouchard, Ward, Amaral, and Doyle. Complaint ¶ 56. Plaintiff makes no
allegations of retaliation against these Defendants. Rather, they are listed as present at the classification board
hearing, id. ¶ 36, and are named in Plaintiff’s failure to classify to protective custody count, id. ¶¶ 50-51.
In his amended complaint, Plaintiff should clarify what, if any, connection these Defendants have to his
retaliation claim, and, if there is none, he should remove them from this count.
7

As noted previously, the dismissal of Plaintiff’s negligence claim is without prejudice.

8

These Defendants are: Director Wall, Deputy Warden Leach, Lieutenant Macomber, Investigator
Begones, Investigator Perry, and Investigator Figarido.

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III.

Application
As for Plaintiff’s Application to proceed in forma pauperis, while Plaintiff has filed the

affidavit required by 28 U.S.C. § 1915(a)(1), he has not submitted a certified copy of his trust fund
account statement (or institutional equivalent), obtained from and certified by an appropriate official
at the ACI, as directed by § 1915(a)(2).9 If Plaintiff decides to proceed with his remaining claim and
wishes to go forward with his Application to proceed in forma pauperis, he should provide the
certified copy of his inmate account statement at the same time he files his amended complaint. The
Court will then rule on his Application.
IV.

Motion for Counsel
There is no right to appointed counsel in a civil case. Maroni v. Pemi-Baker Reg’l Sch.

Dist., 346 F.3d 247, 257 (1st Cir. 2003); King v. Greenblatt, 149 F.3d 9, 14 (1st Cir. 1998)(“This
being a civil case, there is no constitutional right to counsel and the statutory authority is

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Section 1915(a) provides:

(a)(1) Subject to subsection (b), any court of the United States may authorize the
commencement, prosecution or defense of any suit, action or proceeding, civil or criminal,
or appeal therein, without prepayment of fees or security therefor, by a person by a person
who submits an affidavit that includes a statement of all assets such prisoner possesses that
the person is unable to pay such fees or give security therefor. Such affidavit shall state the
nature of the action, defense or appeal and affiant’s belief that the person is entitled to
redress.
(2) A prisoner seeking to bring a civil action or appeal a judgment in a civil action or
proceeding without prepayment of fees or security therefor, in addition to filing the affidavit
under paragraph (1), shall submit a certified copy of the trust fund account statement (or
institutional equivalent) for the prisoner for the 6-month period immediately preceding the
filing of the complaint or notice of appeal, obtained from the appropriate official of each
prison at which the prisoner is or was confined.
28 U.S.C. § 1915(a).

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discretionary.”)(internal citation omitted). Plaintiff must demonstrate that exceptional circumstances
are present such that a denial of counsel is likely to result in fundamental unfairness impinging on
his due process rights. In making the discretionary determination whether there are exceptional
circumstances sufficient to warrant the appointment of counsel, a court must examine the total
situation, focusing on, among other things, the merits of the case, the complexity of the legal issues,
and the litigant’s ability to represent himself. DesRosiers v. Moran, 949 F.2d 15, 24 (1st Cir. 1991);
see also Cookish v. Cunningham, 787 F.2d 1, 2 (1986)(“Whether exceptional circumstances exist
requires an evaluation of the type and complexity of each case, and the abilities of the individual
bringing it.”).
In terms of the merits of the case, it is too early, at this initial stage, for the Court to reach
a determination. As for the complexity of the legal issues, the case appears to be a straightforward
prisoner civil rights action. Finally, with regard to Plaintiff’s ability to represent himself, his
allegations, as put forth in the Complaint, are detailed, clear, and comprehensible. Therefore, after
considering the total situation, the Court concludes that this does not appear to be the “exceptional
case” in which the appointment of counsel is warranted. Accordingly, the Motion to Appoint
Counsel is DENIED.
CONCLUSION
If Plaintiff so chooses, he may file an amended complaint containing only his retaliation
claim. The Court will then re-screen the amended complaint. Plaintiff’s failure to protect, negligent
failure to protect, and failure to classify claims are DISMISSED. The dismissal of the negligent
failure to protect claim is without prejudice to being brought in state court.
In addition, if Plaintiff decides to proceed with his retaliation claim and his Application to

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proceed in forma pauperis, he may file a certified copy of his inmate account statement at the same
time he files his amended complaint. The Court will then rule on his Application.
Plaintiff’s Motion for Counsel is DENIED.

SO ORDERED:

/s/ Mary M. Lisi
Mary M. Lisi
United States District Judge
DATE: October 7, 2014

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