2003 | Cited 0 times | D. Rhode Island | April 7, 2003

Report and Recommendation

This matter is before the court on the motion of defendant A.T. Wall to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil procedure. The plaintiff, Edwin Carty, pro se, has not objected. This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation. For the reasons that follow, I recommend that defendant Wall's motion to dismiss be granted.


The following is a summary of the factual allegations contained in the Amended Complaint, which are taken as true for purposes of this instant motion.

Plaintiff Edwin Carty ("plaintiff"), at all times relevant in the Amended Complaint, was an inmate legally confined at the Adult Correctional Institutions ("ACI"), Cranston, Rhode Island.1 In January 2002, plaintiff was scheduled for surgery to treat his hemorrhoids at Rhode Island Hospital. In April 2002, Dr. Bansal, a physician at the ACI, examined the plaintiff and, at that time, plaintiff informed Dr. Bansal that his surgery was well overdue. During the examination, plaintiff also discussed with Dr. Bansal the ineffectiveness of his prescribed drugs. According to the plaintiff, Dr. Bansal informed the plaintiff that there was nothing that she could do and she did not provide any further treatment. A few months passed, and plaintiff continued to complain to Dr. Bansal about his medical needs but Dr. Bansal refused to provide treatment.

Thereafter, plaintiff asserts he complained to defendant Mel White, a nurse at the ACI, about his lack of proper treatment, explaining that the pain was excruciating and that he could barely walk. Defendant White was not accommodating. White, according to the Amended Complaint, refused to treat the plaintiff and refused to allow the plaintiff access to treatment. Plaintiff also sought the help of Joseph Morroco, the hospital administrator at the ACI, in an effort to receive treatment. His efforts with Morrocco were fruitless.

On September 13, 2002, Dr. Bansal examined the plaintiff again. During the examination, defendant White interfered, shoving the plaintiff into the wall. White then shoved the plaintiff again, pushing him into the hallway and out of the medical clinic, all while disparaging the plaintiff. To the date of the Amended Complaint, plaintiff contends that he still has not had the surgery that he was scheduled to have.

Based upon these facts, plaintiff contends that his rights under the Eighth Amendment of the U.S. Constitution and Article I, Section 8, of the Rhode Island Constitution have been violated.2 With respect to defendant White, plaintiff also asserts claims for defamation, assault, and battery. As redress, plaintiff seeks monetary damages and injunctive relief.3


A. Rule 12(b)(6) Standard

Rule 12(b)(6) of the Federal Rules of Civil procedure provides for the dismissal of actions which fail to state a claim upon which relief can be granted. In ruling on a motion filed under Rule 12(b)(6), the court must "accept the well pleaded averments of the complaint as true, and construe these facts in the light most favorable to the [plaintiff]." Chongris v. Board of Appeals, 811 F.2d 36, 37 (1st Cir. 1987). A Rule 12(b)(6) motion will only be granted when, viewed in this manner, it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-6 (1957). Under a Rule 12(b)(6) motion, "a reviewing court is obliged neither to credit bald assertions, periphrastic circumlocutions, unsubstantiated conclusions, or outright vituperation, nor to honor subjective characterizations, optimistic predictions, or problematic suppositions." United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir. 1992). Unverifiable conclusions, not supported by the stated facts, deserve no deference. Id. Thus, in ruling on the motion to dismiss, the pertinent inquiry is whether plaintiff's complaint sets forth sufficient factual allegations which, if proven, would support his claims of a deprivation of federal rights.

B. 42 U.S.C. § 1983

Plaintiff has brought suit under 42 U.S.C. § 1983. 1983 provides, in pertinent part:

Every person who, under the color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .

42 U.S.C. § 1983.

In order to maintain a section 1983 action, the conduct complained must be committed by a "person" acting under color of state law and the conduct must have deprived the plaintiff of a constitutional right or a federal statutory right. Gomez v. Toledo, 446 U.S. 635, 640 (1980); see also, Baker v. McCollan, 443 U.S. 137 (1979) (constitutional deprivations); Maine v. Thiboutot, 448 U.S. 1 (1980) (statutory deprivations).

Here, however, plaintiff's Amended Complaint contains no factual allegations connecting defendant Wall to any of the alleged misdeeds. plaintiff may not attribute claims against Wall without alleging that he actually participated in the alleged constitutional wrongdoing. Dewey v. The University of New Hampshire, 694 F.2d 1, 3 (1st Cir. 1982); Lopez Morales v. Otero de Ramos, 725 F. Supp. 106, 106-107 (D.P.R. 1989). In other words plaintiff must present facts linking Wall to the alleged wrongdoing. A theory of respondeat superior, if that is what plaintiff alleges, will not suffice. O'Neil v. Baker, 210 F.3d 41, 47 (1st Cir. 2000); Bowen v. City of Manchester, 966 F.2d 13, 20 (let Cir. 1992). Accordingly, defendant Wall's motion to dismiss should be granted with respect to plaintiff's Eighth Amendment claims. I so recommend.

C. State Law Claims Against Wall

To the extent that plaintiff seeks to hold defendant Wall liable for state law violations, this court should decline to exercise jurisdiction over those claims. No independent federal basis of jurisdiction exists as to defendant Wall. See Camelio v. American Federation, 137 F.3d 666 (1st Cir. 1998). Moreover, plaintiff asserts claims that raise substantial questions of state law.4 Accordingly, plaintiff's state law claims against Wall should be dismissed. I so recommend.


For the reasons stated above, I recommend that defendant Wall's motion to dismiss be granted. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).

1. Since the filing of the Amended complaint, plaintiff has been released from custody.

2. Defendant Wall, in his memorandum in support of his motion to dismiss, incorrectly identifies Article I, Section 2, of the Rhode Island constitution as the basis for the relief which plaintiff seeks. Plaintiff, however, identifies Article I, section 8.

3. Plaintiff's claims for injunctive relief are moot since he has been released from custody.

4. Plaintiff asserts a claim pursuant to Article I, Section 8, of the Rhode Island constitution, which prohibits, inter alia, "cruel punishments." See R.I. CONST. Art. I, Sect. 8. The defendant and the plaintiff have failed to cite, and this court is unaware of any case law which indicates whether the failure to provide medical treatment to an inmate is actionable under that section, and if so, what standards to employ. Accordingly, this court should decline to tread in the uncharted waters of state law.

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