Winston v. Deputy Warden M. Auger et al
Filing
6
ORDER denying 2 Motion for Leave to Proceed in forma pauperis; adopting 4 Report and Recommendations and ordering Plaintiff to file an Amended Complaint on or before 12/3/15 and to pay the filing fee at that time. So Ordered by Chief Judge William E. Smith on 11/3/2015. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
DEPUTY WARDEN M. AUGER,
)
LIEUTENANT ODEN AND BREK,
)
OFFICER NICHOLS, BARKER and
)
OFFICER PINHEIRO,
)
)
Defendants.
)
___________________________________)
JOHN F. WINSTON,
C.A. No. 15-204 S
ORDER
WILLIAM E. SMITH, Chief Judge.
This case involves a § 1983 complaint filed by Plaintiff John
F. Winston (“Winston”), a prisoner at the Adult Correctional
Institution (“ACI”) in Cranston.
Winston is pro se and moved for
leave to proceed in forma pauperis.
(ECF No. 2.)
Magistrate Judge
Patricia A. Sullivan issued a Report & Recommendation (“R&R”)
recommending
Winston’s
motion
for
pauperis (“IFP motion”) be denied.
Sullivan
also
considered
the
leave
to
(ECF No. 4.)
merits
of
proceed
in
forma
Magistrate Judge
Winston’s
complaint
pursuant to the Court’s preliminary screening authority under 28
U.S.C. §§ 1915(e)(2)(B) and 1915A(b), and recommended dismissal of
the complaint without prejudice for failure to state a claim upon
which relief can be granted.
(Id.)
Winston timely objected to
the R&R.
(ECF No. 5.)
For the reasons that follow, the Court
OVERRULES Winston’s objections and ACCEPTS the R&R pursuant to 28
U.S.C. § 636(b)(1).
I.
Winston’s IFP Motion
The R&R recommended denial of Winston’s IFP motion on two
alternative grounds. First, it recommended denial under the threestrike rule, a doctrine that prohibits prisoners from proceeding
in forma pauperis if the prisoner previously filed three or more
actions that a court dismissed for failure to state a claim.
28
U.S.C. § 1915(g); Coleman v. Tollefson, 135 S. Ct. 1759, 1761
(2015).
Second, the R&R recommended denial of Winston’s motion
because Winston had enough money in his bank account — in excess
of $4,000 – to initiate a federal case.
In
his
objection,
Winston
does
(R&R 3, ECF No. 4.)
not
dispute
that
he
has
sufficient funds to commence an action, nor does he argue he fits
into an exception to the three-strike rule. Instead, Winston tries
to explain away one of his prior cases.
No. 5.)
(See Pl.’s Obj. ¶ 2, ECF
This, however, does not take Winston outside of the three-
strike rule.
Even if the Court were to disregard one of Winston’s
prior cases, which it does not, Winston still would have filed
three
prior
meritless
lawsuits.
(See
R&R
2,
ECF
Accordingly, the three-strike rule applies to Winston.
2
No.
4.)
It and
Winston’s financial means independently warrant denial of his IFP
motion and Magistrate Judge Sullivan’s recommendation is adopted.
II.
The Merits of Winston’s Claims
The R&R also recommended dismissal of Winston’s complaint for
failing to state a claim.
It bases this recommendation on a
detailed review of Winston’s complaint, construing it liberally
and affording Winston significant deference as a pro se litigant.
(See R&R 4-5, ECF No. 4.)
From this deferential review, the R&R
identifies four alleged injustices that form the basis of Winston’s
claim: Winston was improperly placed in segregation for ninety
days; he improperly lost good time credits; a corrections officer
temporarily withheld $300 from him; and a corrections officer
violated his privacy by looking at him in a towel while in
segregation.
(Id.)
The R&R held that none of these allegations
were sufficient to state a claim under § 1983 and recommended
dismissal of Winston’s complaint without prejudice.
(Id. at 7-
9.)
Winston’s
recitation
of
objection
does
the
underpinning
facts
not
take
issue
his
with
claims;
the
R&R’s
instead
it
principally argues that his claim should survive because he did
not do anything wrong.
(See Pl.’s Obj. ¶¶ 1 and 4, ECF No. 5.)
These objections, however, do nothing to cure the defects the R&R
correctly identified in Winston’s complaint.
3
First, the complaint
does not allege that Winston’s segregation was atypical and imposed
a significant hardship. Sandin v. Conner, 515 U.S. 472, 484 (1995)
(liberty interest in freedom from restraint limited to instances
where restraint “imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life”); cf.
Cook v. Wall, C.A. No. 09-169 S, 2013 WL 773444, at *2 (D.R.I.
Feb.
28,
2013)
significant
(complaint
hardship”
when
adequately
it
alleged
plead
“atypical
plaintiff
was
and
sent
to
segregation “without hearings or any evidence to warrant the
segregation, was terminated from his employment without evidence,
was prevented from producing any evidence at his termination
hearing, and was improperly notified regarding the disciplinary
board's decision”).
Nor do Winston’s objections challenge the
R&R’s conclusion that loss of good time credits under Rhode Island
law fails to implicate a liberty interest.
(See R&R 7-8, ECF
No. 4.)
The Court agrees with the R&R’s analysis of the claims
alleged
in
Winston’s
complaint
and
adopts
the
R&R’s
recommendations.
Winston’s objection also appears to raise a new allegation
not addressed in the R&R: that Department of Corrections employees
subjected him to anti-gay slurs.
(Pl.’s Obj. ¶ 3, ECF No. 5.)
This additional allegation does not save Winston’s complaint.
While the Court in no way condones the use of comments similar to
4
those alleged in Winston’s objection, “verbal abuse and threats,
without
more,
are
not
violation under § 1983.”
sufficient
to
state
a
constitutional
Flores v. Wall, No. CA 11-69 M, 2012 WL
4471101, at *13 (D.R.I. Aug. 31, 2012) report and recommendation
adopted, No. CA 11-69-M, 2012 WL 4470998 (D.R.I. Sept. 25, 2012);
Cote v. Barnhart, No. 1:12-CV-00081-NT, 2012 WL 1038918, at *2 (D.
Me. Mar. 23, 2012).
Here, Winston does not allege any additional
conduct, such as physical abuse, that could support his § 1983
claim.
Collins v. Graham, 377 F. Supp. 2d 241, 243 (D. Me. 2005)
(“Except in circumstances giving rise to ‘unnecessary and wanton
infliction of pain,’ not alleged here, verbal and sexual harassment
does
not
give
rise
to
section
1983
liability
in
the
prison
context.”) (quoting Whitley v. Albers, 475 U.S. 312, 319, (1986))
(collecting
cases).
Thus,
even
with
Winston’s
additional
allegation, his complaint fails to state a claim upon which relief
can be granted.
III. Conclusion
For the foregoing reasons, this Court ADOPTS the Report and
Recommendation submitted by Magistrate Judge Sullivan.
Winston’s
motion for leave to proceed in forma pauperis is DENIED and
Winston’s
complaint
is
DISMISSED
1915(e)(2)(B)(ii) and 1915A.
pursuant
to
28
U.S.C.
§§
Winston is granted leave to file an
amended complaint that addresses the deficiencies identified above
5
and in the Report and Recommendation within thirty days, provided
that Winston pays the filing fee at the same time he files any
amended complaint.
Failure to pay the filing fee will result in
dismissal of his Amended Complaint.
IT IS SO ORDERED.
William E. Smith
William E. Smith
Chief Judge
Date: November 3, 2015
6
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?