White v. McBurney et al

Filing 27

ORDER granting 16 Motion to Dismiss defendants Nuno Figuredo and Billy Bagones in their official capacities; denying 24 Plaintiff's Request for Leave to File a Supplemental Complaint. Plaintiff's remaining claims against Figuredo and Bagones in their individual capacities shall be DISMISSED WITHOUT PREJUDICE unless proof of service on the Defendants in their individual capacities is filed with the Court within fourteen days - So Ordered by Chief Judge William E. Smith on 10/18/2018. (Urizandi, Nisshy)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
MAGISTRATE JOHN F. McBURNEY, III, )
PETER C. KILMARTIN, KIMBERLY
)
AHERN, ROBERT F. MCNELIS,
)
JEFFREY ACETO, PATRICIA COYNE)
FAGUE, JAMES WEEDEN, MATTHEW
)
KETTLE, A.T. WALL, BILLY BAGONES, )
NUNO FIGUREDO, STATE OF RHODE
)
ISLAND, and DEPARTMENT OF
)
CORRECTIONS,
)
)
Defendants.
)
___________________________________)
ROOSEVELT WHITE,

C.A. No. 18-261 WES

MEMORANDUM & ORDER
Before the Court are plaintiff Roosevelt White’s Request for
Leave to File a Supplemental Complaint (ECF No. 24) and the Motion
to Dismiss of defendants Nuno Figuredo and Billy Bagones in their
official capacities (ECF No. 16).

For the reasons set forth

herein, White’s Request for Leave to File a Supplemental Complaint
is DENIED and Defendants’ Motion to Dismiss is GRANTED.

Further-

more, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure,

White’s

claims

against

Figuredo

and

Bagones

in

their

individual capacities shall be DISMISSED WITHOUT PREJUDICE unless

proof of service on the Defendants in their individual capacities
is filed with the Court within fourteen days.
I.

Background
On May 9, 2018, White filed a complaint pro se alleging vio-

lations of 42 U.S.C. § 1983 against numerous defendants, including
a Rhode Island Superior Court magistrate judge, state prosecutors,
White’s former attorney, and employees of the Rhode Island Department of Corrections, including defendants Figuredo and Bagones.
(See Compl. 1, ECF No. 1.) All defendants were sued in their official and individual capacities.

(Id.)

White’s Complaint was screened under 28 U.S.C. §§ 1915(e)(2)
and 1915A by Magistrate Judge Patricia A. Sullivan. (See generally
R. & R., ECF No. 5.) On June 26, 2018, this Court adopted Magistrate
Judge Sullivan’s Report and Recommendation dismissing all claims
against all defendants without prejudice except the individual capacity claims against Figuredo and Bagones. The Court’s order provided White with thirty days to amend his Complaint.
White filed his Amended Complaint on the same day, again
asserting Section 1983 claims against a group of defendants including Figuredo and Bagones. (See Am. Compl., ECF No. 7.) The
gravamen of the twenty-seven-page, handwritten Amended Complaint
is that Figuredo and Bagones retaliated against White because he
was uncomfortable cooperating with the Federal Bureau of Investigation by participating in drug buys.
2

(See, e.g., Am. Compl. 10-

12.)

On July 25, 2018, the Amended Complaint was served on an

assistant attorney general for the State of Rhode Island, who accepted service for Figuredo and Bagones in their “official capacity
only.” (Executed Summonses, ECF Nos. 12, 13.). There is no evidence
in the record that White has accomplished service on any other
defendant or that White served any defendant, including Figuredo
and Bagones, in their individual capacities.
On August 10, 2018, Figuredo and Bagones, in their official
capacities, moved to dismiss the Amended Complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure for failure to
state a claim upon which relief can be granted.

(See ECF No. 16.)

On September 11, 2018, White moved under Rule 15(d) for leave to
supplement the Amended Complaint.
II.

(See ECF No. 24.) 1

Discussion
A. Plaintiff’s Rule 15(d) Motion
Rule 15(d) provides an “efficient mechanism” for litigating

issues accruing after a litigant has filed suit.
Gadbois v. PharMerica Corp., 809 F.3d 1, 4 (2015).

U.S. ex rel.
“On motion and

reasonable notice, the court may, on just terms, permit a party to

1

The docket text describes White’s filing as a “motion to
amend/correct the Complaint.” (ECF No. 24.) White’s memorandum
makes clear, however, that he is moving to supplement the existing
Amended Complaint under Rule 15(d) rather file a second amended
complaint under Rule 15(a).
3

serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be
supplemented.”

Fed. R. Civ. P. 15(d).

The rule’s text prescribes no particularized standards to
guide the Court’s analysis.

In Gadbois, the First Circuit ex-

plained that supplementation “is encouraged ‘when doing so will
promote the economic and speedy disposition of the entire controversy between the parties, will not cause undue delay or trial
inconvenience, and will not prejudice the rights of any of the
other parties to the action.’” Id. (quoting 6A Charles Allen Wright
& Arthur R. Miller, Federal Practice & Procedure, § 1504 (3d ed.
2010)).

To determine whether “just terms” exist to support exer-

cising its discretion, the Court “must weigh the totality of the
circumstances,” including “idiosyncratic factors” such as futility, prejudice to the nonmoving party, and unreasonable delay.
Id. at 7; see also Nottingham v. Peoria, 709 F. Supp. 542, 544
(M.D. Pa. 1988) (listing “promotion of a justiciable disposition”
among relevant Rule 15(d) factors). These factors parallel the
Rule 15(a) variables.

See U.S. ex rel. Gadbois 809 F.3d at 7.

After carefully reviewing White’s submission in light of
these considerations, the Court declines to allow supplementary
pleading here. White’s broad characterization of his allegations
as demonstrating “retaliation, harassment, [sic] by staff” does
not suffice. (Pl.’s Mot. for Supp. Compl. 1 (“Pl.’s Mot.”), ECF
4

No. 24-1.)

Over thirty-four pages, White presents a litany of

brand new allegations against non-parties that lack any obvious
connection to the surviving claims against Figuredo and Bagones
even when leniently read. (See generally Pl.’s Mot.) These include
complaints about other Department of Corrections officers, nurses,
and mental health workers.

(See, e.g., id. at 3-4, 10-14.) White

does not mention Figuredo; Bagones is the subject of just two
fleeting references. 2
Irrelevance
would be futile.

(See id. at 14, 18)

aside,

allowing

White’s

proposed

allegations

The only defendants over which White has estab-

lished the Court’s jurisdiction through service are Figuredo and
Bagones in their official capacities.

But state actors sued in

their official capacity are not “persons” under Section 1983.

See

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (holding “that neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983”); Jones v. Rhode
Island, 724 F. Supp. 25, 28 (D.R.I. 1989) (“Based on the Supreme
Court’s holding in Will, it is clear that neither the State of
Rhode Island nor any of its officials acting in their official
capacities, are ‘persons’ that can be held liable under § 1983.”).

2

The first allegation is a hearsay statement from another
officer that Bagones told the officer to move White to medium
security segregation pending the investigation of a complaint from
a counselor about his conduct. (See Pl.’s Mot. at 14.) The second
is simply a reference to Bagones’s alleged status as a member of
the classification board. (See id. at 18.)
5

Nothing in White’s proposed allegations avoids this principle.

As

it does not appear that the proffered supplemental pleading would
promote efficiency or the justiciability of this action, the Court
declines to allow White’s request.

See Aponte-Torres v. Univ. of

P.R., 445 F.3d 50, 58 (1st Cir. 2006) (“When a proffered amendment
comes too late, would be an exercise in futility, or otherwise
would serve no useful purpose, the district court need not allow
it.”); Nottingham, 709 F. Supp. at 544.
B. Defendants’ Rule 12(b)(6) Motion
The Court need not linger long on the Defendants’ Motion to
Dismiss.

To survive under Rule 12(b)(6), White must allege “suf-

ficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Narragansett Indian Tribe
ex rel. Narragansett Indian Tribal Historic Pres. Office v. R.I.
Dep't of Transp., No. CV 17-125 WES, 2017 WL 4011149, at *2 (D.R.I.
Sept. 11, 2017), aff'd sub nom. Narragansett Indian Tribe v. Rhode
Island Dep't of Transportation, 903 F.3d 26 (1st Cir. 2018) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

White has again

failed to state plausible claims against Figuredo and Bagones in
their official capacities because, as set forth above and in Magistrate Judge Sullivan’s Report and Recommendation, they are not
“persons” under Section 1983. See Will, 491 U.S. at 71; Jones, 724
F. Supp. 28.

Any such claims must therefore be dismissed.

6

C. Plaintiff’s Claims Against Defendants in Their Individual
Capacities
White’s only remaining claims in this action are those against
Figuredo and Bagones in their individual capacities.

Rule 4(m) of

the Federal Rules of Civil Procedure provides “[i]f a defendant is
not served within 90 days after the complaint is filed, the court—
on motion or on its own after notice to the plaintiff—must dismiss
the action without prejudice against that defendant or order that
service be made within a specified time.”

The Amended Complaint

was filed on June 26, 2018, and there is no evidence that Figuredo
and Bagones have been served in their individual capacities.

See

Ruiz v. Rhode Island, No. CV 16-507 WES, 2018 WL 514539, at *2
(D.R.I. Jan. 22, 2018) (“[E]ffecting service on someone in his
official capacity does not ipso facto do so in his individual
capacity, and vice versa.”) (citing Echevarria-Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 30 (1st Cir. 1988); Robinson v. Turner,
15 F.3d 82, 85 (7th Cir. 1994)).

White has already had several

bites at the apple. Accordingly, the remaining individual capacity
claims shall be dismissed unless proof of service on Figuredo and
Bagones in their individual capacities is filed with the Court
within fourteen days of this order.
III. Conclusion
For the aforementioned reasons, Plaintiff’s Request for Leave
to File a Supplemental Complaint (ECF No. 24) is DENIED.

7

The

Motion to Dismiss of defendants Nuno Figuredo and Billy Bagones in
their official capacities (ECF No. 16) is GRANTED. Plaintiff’s
remaining claims against Figuredo and Bagones in their individual
capacities shall be DISMISSED WITHOUT PREJUDICE unless proof of
service on the Defendants in their individual capacities is filed
with the Court within fourteen days.
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: October 18, 2018

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