Karmue v. Remington et al

Filing 99

REPORT AND RECOMMENDATIONS re 78 Objection to 67 REPORT AND RECOMMENDATIONS and Motion to Amend re 1 Complaint. For the reasons stated within, the district judge should grant in part and otherwise deny Karmue's motion to amend (Doc. No, 78) Objections to R&R due by 2/19/2019 - So Ordered by Magistrate Judge Andrea K Johnstone on 2/1/2019. (Urizandi, Nisshy)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

Kormahyah Karmue
v.

Case No. 17-cv-107-LM-AKJ

David Remington, Chief Deputy
United States Marshal, et al.

REPORT AND RECOMMENDATION

Before the court is plaintiff Kormahyah Karmue’s motion
(Doc. No. 78) to amend the complaint in this matter.

No

defendant who has appeared in this action has responded to the
motion.

In his motion, Karmue seeks to: (1) amend the

allegations and name defendants to the claims set forth in the
May 18, 2018 Report and Recommendation (“May 18 R&R”) (Doc. No.
67) as Claims 7 and 8; and (2) assert claims against United
States Marshals Service for the District of Rhode Island (“USMSRI”) Chief Deputy David Remington.

Discussion
I.

Standard for Motion to Amend
In general, under Rule 15(a) of the Federal Rules of Civil

Procedure, leave to amend is to be “freely given.”

Fed. R. Civ.

P. 15(a).

One ground for denying a proposed amendment is

futility.

See Todisco v. Verizon Commc’ns, Inc., 497 F.3d 95,

98 (1st Cir. 2007).

To assess whether the proposed amendment is

futile, this court applies the standard for preliminary review
of claims set forth in the May 18 R&R.

II.

Claim 7
In the May 18 R&R, the court set forth Claim 7 as follows:
7.
One or more unnamed [Donald D. Wyatt Detention
Center (“WDC”)] officers violated Karmue’s Fifth and/or
Fourteenth Amendment right not to be subjected to
punishment during pretrial confinement, or his Eighth
Amendment right to avoid cruel and unusual punishment
after sentencing, by forcing him to sleep in a top bunk
with knowledge that such a bed assignment would cause
Karmue pain due to his physical limitations occasioned
by his medical conditions.

Karmue now seeks to amend Claim 7 to allege that an
individual whom he identifies as “Dr. David Blanchette”
“forced [Karmue] to sleep in a top bunk in which he had to
climb up and down a ladder . . . while he was in terrible
hip, back, and leg pain.”

The court presumes that Karmue

intended to name “Dr. Edward Blanchette” as the defendant to
Claim 7, as Dr. Edward Blanchette treated Karmue at the WDC
and is already a defendant in this case. 1
Karmue has stated sufficient facts to allow Claim 7 to
proceed against Dr. Edward Blanchette.

1Dr.

Accordingly, the

Edward Blanchette is the named defendant in the claims
identified in the May 18 R&R as Claims 5 and 6.

2

district judge should grant Karmue’s motion to amend in
part, to the extent Karmue seeks to amend Claim 7 to name
Dr. Edward Blanchette as the defendant to that claim.

In an

Order issued simultaneously with this R&R (“Simultaneous
Order”) the court vacates the portion of the May 18 R&R
recommending dismissal of Claim 7.

III. Claim 8
In the May 18 R&R, the court set forth Claim 8 as follows:
8.
One or more unnamed WDC officers violated
Karmue’s First Amendment right to petition the
government for a redress of grievances when, in
retaliation for Karmue’s repeated requests for medical
care and complaints about the inadequacy of his
medical care, those officers caused Karmue to be
transferred from the WDC medical clinic to SHU and
then threatened to house Karmue in conditions worse
than those in SHU.
In the May 18 R&R, the court recommended the dismissal of
this claim, as Karmue had failed to name a defendant
responsible for the harms alleged therein.

In his motion

to amend (Doc. No. 78), Karmue has named WDC Sgt. Z. Robbin
as a defendant to this claim.
Claim 8 may proceed against Sgt. Robin.

Accordingly,

the district judge should grant the motion to amend in
part, to the extent Karmue seeks to amend Claim 8 to add
Sgt. Robbin as the defendant to that claim.

3

In the

Simultaneous Order, the court vacates the portion of the
May 18 R&R recommending dismissal of Claim 8.

IV.

David Remington
In the May 18 R&R, the court recommended that Remington be

dismissed from this action as Karmue had failed to assert
specific facts demonstrating that Remington bore responsibility
for any of the harms alleged in Karmue’s Second Amended
Complaint (Doc. No. 70).

In the instant motion to amend,

Karmue identifies several causes of action and theories of
liability in an effort to state a claim against Remington,
specifically: supervisory liability; failure to supervise or
train USMS-RI deputies; failure to remedy wrongs committed by
other defendants; creation of a policy or custom under which
unconstitutional practices occurred,; and failure to protect
Karmue from violations of his rights by other defendants.
To assert a claim sufficient to proceed in this action, the
plaintiff must assert “‘more than a rote recital of the elements
of a cause of action.’”

Garcia-Catalan v. United States, 734

F.3d 100, 103 (1st Cir. 2013) (citation omitted).

Karmue has

failed to assert any specific facts demonstrating that Remington
acted, or failed to act, in a manner that violated Karmue’s
rights.

The district judge should deny Karmue’s motion to amend

4

in part, to the extent it seeks to assert claims against
Remington.

Further, the district judge should approve the May

18 R&R, as amended by the Simultaneous Order, which recommends
dropping Remington from this action.

Conclusion
For the foregoing reasons, the district judge should grant
in part and otherwise deny Karmue’s motion to amend (Doc. No.
78), as follows.

The district judge should grant the motion to

the extent it seeks to: (1) name Dr. Edward Blanchette as a
defendant to Claim 7, and (2) name WDC Sgt. Z. Robbins as a
defendant to Claim 8.

The motion should otherwise be denied;

stripped of legal conclusions, the motion fails to state claims
against USMS-RI Chief Deputy David Remington upon which relief
can be granted.

Upon approval of this R&R, the district judge

should refer this matter to the magistrate judge for an order
directing service upon Dr. Blanchette and Sgt. Robbin.
Any objections to this R&R must be filed within fourteen
days of receipt of this notice.

See Fed. R. Civ. P. 72(b)(2).

The fourteen-day period may be extended upon motion.

Failure to

file specific written objections to the Report and
Recommendation within the specified time waives the right to

5

appeal the district court’s order.

See Santos-Santos v. Torres-

Centeno, 842 F.3d 163, 168 (1st Cir. 2016).

__________________________
Andrea K. Johnstone
United States Magistrate Judge
February 1, 2019
cc:

Kormahyah Karmue, pro se
Bethany N. Wong, Esq.
Matthew C. Reeber, Esq.
Patrick J. McBurney, Esq.
Michael G. Sarli, Esq.
Per C. Vaage, Esq.

6