(2004) | Cited 0 times | D. Rhode Island | September 13, 2004


This case involves constitutional claims filed by Glenn P.LaCedra ("Plaintiff"). He alleges that while he was incarceratedat the Donald W. Wyatt Detention Facility ("Wyatt Facility"),Defendants, Cornell Corrections Corporation, Cornell Correctionsof Rhode Island, Inc. ("Cornell Defendants"), Chief WayneSalisbury ("Salisbury"), Jean Singleton ("Singleton"), LieutenantSharon Johnson ("Johnson"), and other known and unknown employeesof the Cornell Defendants deprived him of his rights under theFirst, Fourth, Sixth, Eighth, Ninth, Thirteenth, and FourteenthAmendments to the United States Constitution. Plaintiff presentsthis Court with statutory causes of action under 42 U.S.C. ___1981 and 1983 and also appears to assert claims pursuant toBivens v. Six Unknown Named Agents of the Federal Bureau ofNarcotics, 403 U.S. 388 (1971) (hereinafter "Bivens"). SeeAm. Compl., at para. 5 (alleging that Defendants acted in theirofficial capacity under the color of law prescribed to them bythe United States Marshals Service and the Federal Government).The matter is here on the Cornell Defendants' objection to aReport and Recommendation issued by Magistrate Judge David L.Martin on January 16, 2001, pertaining to Defendants' motion todismiss Plaintiff's Amended Complaint pursuant to Rule 12(b)(6)of the Federal Rules of Civil Procedure and the CornellDefendants' additional motion to dismiss pursuant to FederalRules 12(b)(2),(4), and (5)for lack of jurisdiction over theperson, insufficiency of process and insufficiency of service ofprocess.

Judge Martin recommended that this Court grant the motion todismiss all claims against Salisbury, Johnson, and Singleton onstatute of limitations grounds. Report & Recommendation, at28-29. As to the Cornell Defendants, Judge Martin recommendedthat this Court grant the motion to dismiss Plaintiff's claimsbased on exposure to second-hand smoke and his claims under42 U.S.C. ___ 1981 and 1983, but deny the motion to dismissPlaintiff's Bivens claims and his constitutional claims basedon violations of Plaintiff's privacy rights by female officers.Id., at 29. Judge Martin also recommended that the CornellDefendants' motions to dismiss pursuant to Rules 12(b)(2),(4),and (5) be denied and that the Wyatt Facility be dismissed fromthis litigation. Id.

The Cornell Defendants objected to the Report andRecommendation, arguing that their motion to dismiss should begranted in toto because the claims set forth against them in theAmended Complaint do not relate back to the date that theoriginal Complaint was filed and, therefore, are barred by thestatute of limitations. Mem. of Law in Supp. Of Defs.' CornellCorrs. of R.I., Inc. & Cornell Corrections, Corp., Objection tothe Report & Recommendation of Jan. 16, 2001, (hereinafterCornell Defs.' Mem.) at 1. Alternatively they argue that, inany event, Plaintiff cannot assert Bivens claims against them.

For the reasons that follow, this Court agrees with JudgeMartin's conclusion that the Amended Complaint satisfies therequirements set forth in Rule 15(c)(3) of the Federal Rules ofCivil Procedure and relates back to the date that Plaintiff filedhis original Complaint. Therefore, the claims asserted againstthe Cornell Defendants are not time barred and that objection tothe Report and Recommendation is overruled. Since Plaintiff'sclaims pursuant to 42 U.S.C. §§ 1981 and 1983 and Bivens remainagainst the Cornell Defendants, this Court must also addressJudge Martin's conclusions regarding the validity of thoseclaims.

This writer agrees with Judge Martin's conclusion thatPlaintiff is unable to state a claim for relief pursuant to42 U.S.C. ___ 1981 against the Cornell Defendants. However, thisCourt disagrees with Judge Martin's conclusion that Plaintiff hasno cause of action pursuant to 42 U.S.C. § 1983, but does haveviable Bivens claims including a constitutional claim forviolation of his privacy rights. Therefore, this Court writesseparately on each claim in order to expound upon this subjectmatter and bring a modicum of clarification to this muddled areaof the law. The final result in the present case is that judgmentwill be entered for all Defendants on Plaintiff's AmendedComplaint.

I. Background and Procedural History

Plaintiff, Glenn P. LaCedra, is a Massachusetts resident whowas confined at the Wyatt Facility in Central Falls, RhodeIsland, from January 26, 1996, until April 6, 1997. Plaintiff wasdetained at the Wyatt Facility while awaiting trial in the UnitedStates District Court for the District of Massachusetts in thecase of United States v. Glenn P. LaCedra. The trial took placebetween late September and early October 1996. Plaintiff wasconvicted, sentenced to a lengthy prison term and thenincarcerated at F.M.C. Devens in Ayer, Massachusetts.

The Creation of the Wyatt Facility

The Wyatt Facility is a unique creature of state law.1On July 11, 1991, the Rhode Island General Assembly passed theMunicipal Detention Facility Corporations Act ("MDFCA"), R.I.Gen. Laws § 45-54-1, et seq (1991). The MDFCA's purpose was topromote economic development in Rhode Island by allowing theconstruction of a prison which would provide the United StatesMarshals Service with space to house federal pretrial detainees.The MDFCA authorized a municipality to create a corporation thatwould own and operate a detention facility.

The Central Falls City Council passed a resolution that adopteda plan enabling the City of Central Falls to construct a prisonfacility pursuant to the MDFCA. That City created the CentralFalls Detention Facility Corporation ("CFDFC") which became theowner of the Wyatt Facility. Although the CFDFC is characterizedas an instrumentality and agency of the City of Central Falls, itis a public corporation with a legal existence distinct from theCity.

The CFDFC is a public corporation with five members on itsboard of directors who are appointed by the Mayor of the City ofCentral Falls and serve on a voluntary basis. The CFDFC is notpart of the City of Central Falls, and is only controlled by theCity in two aspects. The CFDFC must follow the City's procurementrequirements with respect to any non-federal contracts that theCFDFC enters into, and the City may informally transfer propertyto the CFDFC if needed.

After receiving financing for the construction of the WyattFacility from the Rhode Island Port Authority, the CFDFCcontracted with Cornell Corrections, Inc., a private corporation,to employ a staff and conduct daily operations at the WyattFacility. This contract gave Cornell Corrections2 theexclusive use, possession, control of and authority to operatethe Wyatt Facility. The CFDFC also made an arrangement with theUnited States Marshals Service to house federal pretrialdetainees on a per diem basis at the Wyatt Facility. At times,state prisoners are also incarcerated there. The CFDFC opened theprison in 1993 and named it the Donald W. Wyatt Detention Centerin honor of the then United States Marshal for the District ofRhode Island who was a moving force in its creation.

Plaintiff Begins the Instant Litigation

Plaintiff, acting pro se, filed his original Complaint onAugust 18, 1999, in the United States District Court inMassachusetts. The Complaint describes events that allegedlyoccurred during Plaintiff's detention at the Wyatt Facility. Theoriginal Complaint named the Wyatt Facility and its other knownand unknown employees as defendants.

On September 15, 1999, Judge Nathaniel M. Gorton of that Courtissued a Memorandum and Order concluding that Rhode Island wasthe proper venue for this case and directed that the case betransferred to this Court pursuant to 28 U.S.C. § 1406(a). Thecase was transferred on September 20, 1999, and it appears thatthe papers arrived at this Court a few days later. The case wasassigned to this writer.

On February 9, 2000, Plaintiff filed a Motion for Servicebecause he was encountering difficulties serving his Complaint onthe Wyatt Facility and its known and unknown employees. Thiswriter granted Plaintiff's Motion for Service and ordered theClerk to sign the Summons and the United States Marshal to servethe Wyatt Facility. On February 24, 2000, the United StatesMarshal served the Wyatt Facility with a copy of the Summons andComplaint by delivering those documents to Salisbury, who was atthe Wyatt Facility. On March 6, 2000, Plaintiff sent the WyattFacility courtesy copies of the Complaint, Summons, and thisCourt's Order of February 9, 2000.

The Wyatt Facility and its Known and Unknown Employees areDefaulted

On March 25, 2000, Plaintiff moved for an entry of defaultagainst the Wyatt Facility and its known and unknown employeesfor their failure to answer or otherwise respond to theComplaint. A deputy clerk entered a default against the WyattFacility on March 27, 2000, and Plaintiff then moved for entry ofdefault judgment. The CFDFC, although not a party to the case,moved to vacate the default against the Wyatt Facility and filedobjections to Plaintiff's motion for default judgment on May 19,2000.

Magistrate Judge Martin held a hearing on these motions on June29, 2000. During that hearing, counsel for the CFDFC argued thatPlaintiff knew of the Cornell Defendants' involvement in theoperation of the Wyatt Facility in 1997 and therefore had enoughinformation to determine the proper defendants before filing hisComplaint. Counsel indicated that the Cornell Defendants operatethe Wyatt Facility and employ the individuals who work there on adaily basis. Both defense counsel and the Court suggested thatthe Cornell Defendants be named in the Complaint before anyfurther service was effectuated.

Judge Martin Vacates the Default Against the Wyatt Facility

Judge Martin then issued a Memorandum and Order granting theCFDFC's motion to vacate the default. Judge Martin concluded thatthe CFDFC did not have any employees at the Wyatt Facility andthat Salisbury was never authorized to accept service of theComplaint on the CFDFC's behalf. Judge Martin also concluded thatthe action against the Wyatt Facility was void because the WyattFacility is the name of a building owned by the CFDFC and is nota legal entity, corporation, or association. Therefore, thedefault against the Wyatt Facility was removed.

Plaintiff Files an Amended Complaint

Plaintiff later moved to file an Amended Complaint and JudgeMartin signed an Order granting that motion on August 21, 2000.Plaintiff's Amended Complaint retained the Wyatt Facility as aDefendant and added the Cornell Defendants, Salisbury, Singleton,Johnson, and other known and unknown employees of the CornellCorporation. Plaintiff alleges that these Defendants acted intheir official capacities and under the color of law prescribedto them by the United States Marshals Service and the FederalGovernment. Plaintiff also alleges that the Cornell Defendantsused, possessed, and controlled the Wyatt Facility and actedjointly and severally and in cooperation and conspiracy withtheir employees to deprive Plaintiff of his rights under theConstitution, the laws of the United States, and the law of theState of Rhode Island The Amended Complaint avers that thisCourt has federal question jurisdiction pursuant to28 U.S.C. §§ 13313 and 13434 and pendant jurisdiction over anytort claims arising under Rhode Island state law.5

According to the Amended Complaint, Plaintiff spent theentirety of his time at the Wyatt Facility in an area called the"B pod," which overlooked the recreation yard. During that time,Plaintiff alleges that the Cornell Defendants' known and unknownemployees committed the following acts while under thesupervision of Salisbury, Johnson, and Singleton: 1)opening,inspecting, reading, and tampering with Plaintiff's incoming andoutgoing mail without his consent; 2)recording and listening toPlaintiff's telephone calls without his consent; 3)forcingPlaintiff to use the Wyatt Facility's phone carrier,"Global-Telnet," without informing him that his conversationswould be taped, listened to, and recorded for future use, andrequiring Plaintiff to make only collect calls; 4)lockingPlaintiff in his cell for twenty-four hours a day without ashower, phone calls, or access to legal assistance for a periodof over eleven days; 5)subjecting Plaintiff to hostile andviolent sentenced state prisoners; 6)failing to provide Plaintiffwith nutritious meals; 7)questioning Plaintiff for up to twohours without counsel about his then cell-mate's confessions tomurder and other crimes; 8)female employees watching andinterrupting Plaintiff and other inmates while they showered,urinated, defecated, or cleaned themselves; 9)denying Plaintiffaccess to a scapular and treating Muslim, Jewish, and Heatheninmates differently than Catholic inmates; 10)providing anAssistant United States Attorney with a list of Plaintiff'svisitors and personal information about those visitors, withoutinforming or gaining the consent of Plaintiff or his visitors;11)providing Plaintiff with unsanitary uniforms thereby exposingPlaintiff to infection and disease; 12)subjecting Plaintiff tofemale inmates who exposed themselves and teased the maleprisoners; 13)providing substandard medical care; and 14)exposingPlaintiff to second-hand smoke (a claim added in the AmendedComplaint). Plaintiff alleges that each Defendant hadopportunities to prevent these acts from occurring but failed todo so, and instead, assisted in and adopted such unlawful conductand caused injury to Plaintiff.

The main thrust of the Amended Complaint is that the abovealleged actions give rise to liability under 42 U.S.C. §§ 1981and 1983 and, presumably, Bivens. Plaintiff seeks $500,000.00in compensatory damages and punitive damages in an amount thatthis Court considers fair, just, and reasonable. Plaintiff alsoseeks attorney's fees and costs, presumably pursuant to28 U.S.C. § 1988 (2000) (allowing the court to award attorney's fees to theprevailing party in an action brought pursuant to, among others,42 U.S.C. §§ 1983). To the present, Plaintiff has not retainedcounsel and is proceeding pro se.

Salisbury, Johnson, Singleton, and the Cornell Defendants wereserved with Plaintiff's Amended Complaint in August of 2000.These Defendants then filed a Motion to Dismiss the AmendedComplaint pursuant to Federal Rule of Civil Procedure 12(b)(6),to which Plaintiff later responded. The Cornell Defendants alsomoved for dismissal under Federal Rules 12(b)(2),(4) and (5).

Judge Martin Issues a Report and Recommendation on Defendants'Motion to Dismiss

Judge Martin held a hearing on these motions, took the matterunder advisement, and issued a Report and Recommendation onJanuary 16, 2001. Judge Martin recommended that this Court grantthe motion to dismiss all claims asserted against Salisbury,Johnson, and Singleton because those claims were barred by theapplicable statute of limitations and did not relate back to thedate Plaintiff's original Complaint was filed. Report &Recommendation, at 12. Judge Martin concluded that the claimsagainst the Cornell Defendants, except for the claim based onexposure to second-hand smoke (which was added in the AmendedComplaint), did relate back to the date of the original Complaintand therefore were not time barred. Id., at 13. He thenrecommended that this Court grant the Cornell Defendants' motionto dismiss Plaintiff's claims under 42 U.S.C. §§ 1981 and 1983,but deny the motion to dismiss Plaintiff's Bivens claims andclaims based on violations of his privacy rights by femaleofficers. Id., at 14, 15, & 23. Judge Martin recommendedfurther that this Court deny the Cornell Defendants' motion todismiss pursuant to Rules 12(b)(2),(4), and (5) of the FederalRules of Civil Procedure and dismiss the Wyatt Facility from thepresent action. Id., at 23-28.

The Cornell Defendants Object to the Report andRecommendation

The Cornell Defendants filed an objection to Judge Martin'sReport and Recommendation on January 29, 2001, prior to theexpiration date for filing objections set forth in Federal Ruleof Civil Procedure 72(b) and Local Rule 32.6 AlthoughPlaintiff objected to the Cornell Defendants' objection to theReport and Recommendation, he never filed his own independentobjections to Judge Martin's conclusions. After both sides filedvarious replies and sur-replies and were given ample time torespond to one another, this writer heard oral arguments on theCornell Defendants' objection to the Report and Recommendation onJune 20, 2003.

At that hearing, this writer opined that the Wyatt Facility wasbeing operated under color of state law and therefore Plaintiffmay be able to assert his claims under 42 U.S.C. § 1983. Sinceneither the Cornell Defendants nor Plaintiff had objected to theMagistrate Judge's Recommendation to dismiss the § 1983 claims,this writer requested and gave the parties thirty days to filesupplemental memoranda on that issue. Both parties filedmemoranda and this writer then granted Plaintiff's repeatedrequests for enlargements of time so that he could retaincounsel. Finally, on March 1, 2004, this Court heard oralarguments on the supplemental memoranda and the CornellDefendants' objection to the Report and Recommendation and tookthe matter under advisement. Again, Plaintiff appeared at theMarch 1, 2004, hearing pro se. These matters have been fullybriefed and argued and are now in order for decision.

II. Standards for Decision

A district court conducts a de novo review of a magistratejudge's determinations of dispositive pretrial motions. See28 U.S.C. § 636(b)(1); Fed.R. Civ. Pro. 72(b); Local Rule 32(c)(2).A dispositive motion is one that extinguishes a party's claim ordefense. Id. See also Phinney v. Wentworth Douglas Hosp.,199 F.3d 1, 6 (1st Cir. 1999) (noting that striking a plaintiff'spleadings or dismissing a counterclaim is a dispositive motionthat is reviewed de novo); Harvard Pilgrim Health Care of NewEngland v. Thompson, 318 F. Supp. 2d 1, 6 (D.R.I. 2004); Officeof the Child Advocate v. Lindgren, 296 F. Supp. 2d 178, 183(D.R.I. 2004). The Cornell Defendants' Rule 12(b)(6) motion is adispositive motion because if granted, it will extinguish theclaims set forth in Plaintiff's Amended Complaint.

When conducting a de novo review, the district court "mayaccept, reject, or modify the recommended decision, receivefurther evidence, or recommit the matter to the magistrate judgewith instructions." Harvard Pilgrim, 318 F. Supp. 2d at 6;Child Advocate, 296 F. Supp. 2d at 183; Fed.R. Civ. P. 72(b).See also 28 U.S.C. § 636(b)(1). The district court mustactually review and weigh the evidence presented to themagistrate judge and may not merely rely on the magistratejudge's report and recommendation. Child Advocate,296 F. Supp. 2d at 183. See also United States v. Raddatz, 447 U.S. 667,675 (1980); Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir.1989); 12 Charles Allen Wright, Arthur R. Miller & Richard L.Marcus, Federal Practice and Procedure § 3070.2, at 382 (2d ed.1997 & Supp. 2003). The discretion that Article III requiresregarding dispositive matters allows the district judge to decidethe issues in any way he or she deems proper and to reject or payno attention to the magistrate judge's findings. Wright, et al.,supra, § 3070.2, at 378.

In the instant case, this Court must apply the standard for amotion to dismiss under Rule 12(b)(6) of the Federal Rules ofCivil Procedure. In ruling on such a motion to dismiss, the Courtconstrues the complaint in the light most favorable to theplaintiff, taking all well-pleaded allegations as true and givingthe plaintiff the benefit of all reasonable inferences. SeeCooperman v. Individual Inc., 171 F.3d 43, 46 (1st Cir. 1999);Figueroa v. Rivera, 147 F.3d 77, 80 (1st Cir. 1998); Gross v.Summa Four, Inc., 93 F.3d 987, 991 (1st Cir. 1996). Dismissalunder Rule 12(b)(6) is appropriate only if "it appears beyonddoubt that the plaintiff can prove no set of facts in support ofhis claim which would entitle him to relief." Hishon v. King &Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson,355 U.S. 41, 45-46 (1957)); Dartmouth Review v. Dartmouth Coll.,889 F.2d 13, 16 (1st Cir. 1989); 5A Wright et al., supra, §1357. See also, Haines v. Kerner, 404 U.S. 519, 520-21 (1972)(quoting Conley, and noting that a pro se complaint is held toa less stringent standard than formal pleadings drafted bycounsel); Rodi v. Ventetuolo, 941 F.2d 22, 23 (1st Cir. 1991)(citations omitted) (noting that a pro se complaint is to be readwith an extra degree of solicitude).

However, a party's failure to raise objections to a magistratejudge's report and recommendation results in a waiver of thatparty's right to review in a district court. Davet v.Maccarone, 973 F.2d 22, 31 (1st Cir. 1992) (citations omitted).See also Park Motor Mart, Inc. v. Ford Motor Co.,616 F.2d 603, 605 (1st Cir. 1980) (concluding that a party may or may notfile objections within ten days as he or she chooses, but must doso if that party wishes the district court to consider hisobjections); Fenner v. Moran, 772 F. Supp. 59, 64 (D.R.I. 1991)(accepting a report and recommendation when no objections werefiled and the time for filing such objections had expired). Itdoes not appear that Congress intended that the FederalMagistrates Act would require a district court to conduct a denovo or any other review of a magistrate judge's factual or legalconclusions absent any objections to those determinations.Thomas v. Arn, 474 U.S. 140, 152 (1985). Thus, a magistratejudge's findings and conclusions become that of the districtcourt unless a specific objection is filed within a reasonabletime. Id., at 151(citing Jurisdiction of U.S. Magis.: Hr'g. onS. 1283 Before the Subcomm. on Improvements in Jud. Mach. of theS. Comm. on the Judiciary, 94th Cong., 1st Sess., at 24 (1975)).A party may not submit a procedural document in place of specificobjections to a magistrate judge's conclusions in order to obtainreview of those conclusions in a district court. Eldridge v.Bowen, 685 F. Supp. 285, 286, n. 1 (D.Me. 1988).

III. Discussion

Plaintiff did not file any objections to Judge Martin's Reportand Recommendation and argues instead that this Court shouldadopt that Report and Recommendation in its entirety. Objectionsof Plf. Glenn P. LaCedra to Defs.' Objection to the Report &Recommendation of Jan. 16, 2001, (hereinafter, Pl's.Objections) at 4. See also, Pl.'s Reply to Defs.'Supplemental Mem. of Law, at 7(admitting that he failed toobject to the Report and Recommendation with regard to thedismissal of his § 1983 claims). Plaintiff argues that his Replyto the Cornell Defendants' objection to the Report andRecommendation should serve as his timely objection to JudgeMartin's conclusions because he was granted additional time tofile and his Reply was later accepted by this Court. Pl.'sSupplemental Mem. as Ordered by this Court on June 29, 2003, at6-7. However, Plaintiff's submission of this procedural documentis neither a substitute nor a cure for Plaintiff's failure tofile specific objections to the Report and Recommendation withinthe requisite time period. See Eldridge v. Bowen,685 F. Supp. 285, 286, n. 1 (D.Me. 1988). See also, Ruiz-Rivera v.Riley, 209 F.3d 24, 28, n. 2 (1st Cir. 2000) (quoting FDIC v.Anchor Props., 13 F.3d 27, 31 (1st Cir. 1994) (explaining that alitigant's pro se status does not absolve him or her fromcompliance with the Federal or Local Rules of Civil Procedure)).Absent an objection by either party, Judge Martin's conclusionsto dismiss all claims asserted against Salisbury, Singleton, andJohnson and the § 1981 and 1983 claims against the CornellDefendants are not presently before this Court. This Court thenturns to the Cornell Defendants' objection to Judge Martin'sconclusion that Plaintiff's claims asserted in the AmendedComplaint relate back to the filing of the original Complaint andtherefore, are not subject to dismissal on statute of limitationsgrounds.

In Order to Avoid the Time Bar Set by the Statute ofLimitations, Plaintiff's Amended Complaint Must Satisfy theRequirements of Federal Rule of Civil Procedure 15(c)(3) andRelate Back to the Date that the Original Complaint was Filed.

This writer agrees with Judge Martin's conclusion that Rule15(c)(3) of the Federal Rules of Civil Procedure controls whetheror not the Amended Complaint that added Salisbury, Johnson,Singleton, and the Cornell Defendants to this lawsuit relatesback to the filing of the original Complaint and avoids the barset by the statute of limitations.7 See Report &Recommendation, at 9(citing Wilson v. United States,23 F.3d 559, 562 (1st Cir. 1994) (quoting Fed.R. Civ. P. 15(c))). Seealso, Velez v. Alvarado, 145 F. Supp. 2d 146, 153 (D.P.R.2001) (citing Wilson, 23 F.3d at 562) (noting that after thestatute of limitations expires, Rule 15(c) determines whether ornot a plaintiff may amend a complaint to add a defendant byrelating that amended complaint back to the original one); AyalaSerrano v. Collazo Torres, 650 F. Supp. 722, 726 (D.P.R. 1986)(citations omitted) (noting that the doctrine of relation back isa question of federal procedure and operates independently of anystate law). An amended complaint relates back to the filing ofthe original complaint when: 1)the claim asserted in the amendedcomplaint arises out of the same conduct, transaction, oroccurrence set forth or attempted to be set forth in the originalpleading; 2)the party being added by the amendment receivednotice of the institution of the action within the time periodspecified in Federal Rule 4(m) for service of a summons andcomplaint and that new party will not be prejudiced inmaintaining a defense on the merits; and 3)the party being addedto the litigation knew or should have known that the action wouldhave been brought against him or her but for a mistake as to theidentity of the proper party. Fed.R. Civ. P. 15(c)(3); VKKCorp. v. Nat'l. Football League, 244 F.3d 114, 128 (2d Cir.2001); Leonard v. Parry, 219 F.3d 25, 28 (1st Cir. 2000);Freund v. Fleetwood Enters., Inc., 956 F.2d 354, 363 (1st Cir.1992); Velez, 145 F. Supp. 2d at 153; Pineda v. AlmacenesPitusa, Inc., 982 F. Supp. 88, 96 (D.P.R. 1997). When thesethree elements are satisfied, the amended pleading relates backto the original, meaning that it adopts the date of the originalpleading for purposes of determining whether or not the statue oflimitations has expired. Ayala Serrano, 650 F. Supp. at 725; 6ACharles Alen Wright, Arthur R. Miller & Mary Kay Kane, FederalPractice & Procedure, § 1498, at 107 (2d ed. 1990 & Supp. 2004).

The relation-back doctrine ensures that litigants do not usethe statute of limitations to prevent the litigation of claimswhen a real party in interest received sufficient notice of theproceedings or was practically involved in the proceedings fromthe early states of the litigation. Pineda,982 F. Supp. at 97(citing Ayala Serrano, 650 F. Supp. at 726(quoting Hamptonv. Hanrahan, 522 F. Supp. 140, 145 (N.D.Ill. 1981))). See alsoVKK Corp., 244 F.3d at 128(citations omitted) (noting that thegoal of the relation-back principle is to prevent parties fromtaking unjust advantage of otherwise inconsequential pleadingerrors to prevail on a limitations defense); accord Daily v.Monte, 26 F. Supp. 2d 984, 987 (E.D.Mich. 1998); Richard v.Reed, 883 F. Supp. 107, 111 (W.D.La. 1995) (citing 6A Wright,Miller & Kane, Federal Practice & Procedure, § 1498 (1990)).The determination of whether or not an amended pleading relatesback to the date of the original is left to the discretion of thetrial court. Shea v. Essensten, 208 F.3d 712, 720 (8th Cir.2000) (citations omitted). See also, Williams v. UnitedStates, 405 F.2d at 237(noting that Rule 15(c) is permissive). Atrial court should exercise this discretion liberally, especiallywhen the complaint alleges a violation of civil rights. AyalaSerrano, 650 F. Supp. at 726(citing Canty v. City of RichmondPolice Dep't., 333 F. Supp. 1396 (E.D.Va. 1974), aff'd.,526 F.2d 587 (4th Cir. 1975)).

The Amended Complaint Arises out of the Same Conduct,Transaction, or Occurrence Described in the Original Complaint:Plaintiff's Incarceration at the Wyatt Facility.

Neither party objected to Judge Martin's conclusion that thefirst prong of the relation-back test was satisfied because,except for Plaintiff's claim regarding his exposure tosecond-hand smoke, the claims asserted against the CornellDefendants arise out of the same conduct, transaction, oroccurrences described in the original Complaint, that beingPlaintiff's incarceration at the Wyatt Facility. Report &Recommendation, at 12. This writer agrees with Judge Martin andturns to the second and third prongs of the relation-back test,namely, adequate notice and mistake.

The Cornell Defendants had Notice of the Institution of thisAction and have not Demonstrated that they will Suffer Prejudiceby Being Forced to Defend this Case on the Merits.

Whether or not a party added by way of an amended complaint hadactual or constructive notice of the original action is thecritical question in a Rule 15(c) determination. Williams,405 F. 2d at 236. See also, Ayala Serrano, 909 F.2d at 12(quotingSchiavone v. Fortune, 477 U.S. 21, 31 (1986) (noting that "thelinchpin is notice and notice within the limitationsperiod")).8 In order to satisfy the notice element ofRule 15(c)(3), the party being added through an amended complaintmust have received notice of the institution of the action withinthe time period set forth in Rule 4(m) of the Federal Rules ofCivil Procedure, which is one-hundred and twenty days after thefiling of the initial complaint. See Velez,145 F. Supp. 2d at 153; Fed.R. Civ. P. 15(c)(3)(A) & 4(m); 6A Wright, et al.,supra, 2004 Supp. § 1498, at 22. Rule 4(m) enables the court toallow additional time for service if the plaintiff shows goodcause for failing to act within the one-hundred and twenty dayperiod. Fed.R. Civ. P. 4(m), advisory committee notes to the1993 Amendments, at subdiv.(m). The requirement of timely noticeserves as a yardstick for evaluating whether or not amending thecomplaint will cause the new defendant to suffer prejudice if heor she is forced to defend the case on the merits.9Manney v. Monroe, 151 F. Supp. 2d 976, 995 (N.D.Ill. 2001)(citing Woods v. Worachek, 618 F.2d 1225, 1229 (7th Cir.1980)).

Rule 15(c) does not require that a new party receive actualnotice of the action and the Rule may be satisfied by a showingof constructive notice. Daily, 26 F. Supp. 2d at 986 (citingBerndt v. State of Tennessee, 796 F.2d 879, 884 (6th Cir.1986)). The pertinent question is whether or not the new party,when viewed from the standpoint of a reasonably prudent person,should have expected that the original pleading might be alteredor called into question. Manney, 151 F. Supp. 2d at 995. Seealso, 6A Wright, et al., supra, § 1497, at 93(noting that thereasonable person inquiry better reflects the liberal policy ofRule 15(c)). Thus the notice must be reasonably calculated, underall of the circumstances, to apprise all interested parties ofthe pending action. Felix, 811 F. Supp. at 127 (quotingGleason v. McBride, 869 F.2d 688, 692 (2d Cir. 1989)).

Federal courts have found sufficient notice for Rule 15(c)purposes in at least three different factual situations. First,there is sufficient notice when an employee who is authorized toreceive a summons does not reject a summons that names anon-existent party. See Pineda, 982 F. Supp. at 97 (serving asecretary authorized to receive summonses imputed knowledge toher employer that the original complaint was directed against theemployer rather than a non-existent entity). Second, an originalcomplaint may give a new defendant constructive notice of theinstitution of an action when the substance of the originalcomplaint alleges that the new defendant committed the illegalacts described therein and is an official of one of the originaldefendants. Daily, 26 F. Supp. 2d at 987 (citing Doe v.Sullivan County, 956 F.2d 545, 552 (6th Cir. 1992); Berndt v.Tennessee, 796 F.2d 879, 884 (6th Cir. 1986)). Third, a newdefendant has constructive notice of an action when he or sheretains the same attorney as an original defendant and thatattorney should have known that the new defendant would be addedto the existing lawsuit. Byrd v. Abate, 964 F. Supp. 140, 146(S.D.N.Y. 1997); Felix, 811 F. Supp. at 127-8 (quotingGleason, 869 F.2d at 693); Hodge v. Ruperto,739 F. Supp. 873, 881 (S.D.N.Y. 1990); Hood v. City of New York,739 F. Supp. 196, 199 (S.D.N.Y. 1990); Ayala Serrano,650 F. Supp. at 728 (citations omitted). But see, Manney,151 F. Supp. 2d at 999 (citing Woods v. Indiana Univ.-Purdue Univ. atIndianapolis, 996 F.2d 880, 889, n. 14 (7th Cir. 1993)) (notingthat relation back is improper when all defendants, including thenewly-added defendants, share the same counsel). When a new andoriginal defendant share the same attorney, there is no prejudiceto the new defendant if the attorney was initially on notice toprepare the new party's defense. Felix, 811 F. Supp. at 128.

There is also sufficient notice for Rule 15(c) purposes in afourth situation; when the original and newly-added defendantsshare an identity of interests. Ayala Serrano, 909 F.2d at 12(citing Hernandez Jimenez v. Calero Toledo, 604 F.2d 99, 102(1st Cir. 1979)); Velez, 145 F. Supp. 2d at 154; Bowden v.Wal-Mart Stores, Inc., 124 F. Supp. 2d 1228, 1241-42 (M.D.Ala.2000); Ayala Serrano, 650 F. Supp. at 726. A new and originaldefendant share an identity of interests when they are so closelyrelated in business or other activities and their interests aresufficiently aligned that it is fair to presume that the newdefendant learned of the institution of the action from theoriginal defendant. Ayala Serrano, 909 F.2d at 12(quotingHernandez Jimenez, 604 F.2d at 102-03); Bowden,124 F. Supp. 2d at 1242 (citations omitted); Ayala Serrano,650 F. Supp. at 726; Bruce v. Smith, 581 F. Supp. 902, 906 (W.D.Va.1984); 6A Wright, et al., supra, § 1498, at 146. The First Circuit hasutilized the identity of interest concept in cases arising under42 U.S.C. § 1983. Velez, 145 F. Supp. 2d at 154(citing AyalaSerrano, 909 F.2d at 10; Hernandez Jimenez, 604 F.2d at 103).However, reliance on the identity of interest concept ismisplaced and unnecessary when an amended complaint seeks tobring the same entity into the litigation under its proper name,rather than a separate but closely-related entity. Pineda,982 F. Supp. at 97.

Judge Martin concluded that the second prong of therelation-back test was satisfied because the Cornell Defendantsreceived notice of the institution of this action within the timeperiod set forth in Rule 4(m) such that it would not beprejudicial to require the Cornell Defendants to defend the caseafter the statute of limitations expired. Report &Recommendation, at 12-13. Judge Martin concluded that the noticerequirement was satisfied by Plaintiff's service of the originalComplaint upon the Wyatt Facility on February 4, 2000. Report &Recommendation, at 12. This service occurred more thanone-hundred and twenty days after Plaintiff filed his originalComplaint.10 However, given Plaintiff's pro se status andthis Court's grant of Plaintiff's Motion for Service, JudgeMartin opined that the period of time under Rule 15(c)(3) duringwhich the Cornell Defendants must have received notice of thisaction was extended, as provided for in Rule 4(m), until at leastFebruary 24, 2000, the date that the United States Marshal servedthe Wyatt Facility. Id., at 12-13. He also found that servingSalisbury with the original Complaint gave the Cornell Defendantssufficient notice of the institution of Plaintiff's actionbecause of Salisbury's position as "Chief" or "Captain" at theWyatt Facility. Report & Recommendation, at 13.

This Court finds no error in the above conclusions for severalreasons. First, Salisbury, an employee of the Cornell Defendants,accepted service of the original Complaint even though it named anon-existent entity, the Wyatt Facility, as a defendant. Second,the substance of the original complaint indicates that Plaintiffintended to sue the entity in charge of daily operations at theWyatt Facility and the employer of the individuals who allegedlyviolated Plaintiff's constitutional rights. Third, the CornellDefendants had constructive notice of the institution of thisaction because they share the same attorney as the originaldefendants. Fourth, the Cornell Defendants have not shown thatthey will be prejudiced if this Court requires them to now defendagainst Plaintiff's claims.

As to the first reason, although the Cornell Defendantsmaintain that they do not have an officer or agent at the WyattFacility, they employ Chief Salisbury who received and did notreject service of the original Complaint, which contained thename of a non-existent entity, the Donald W. Wyatt DetentionCenter. It is reasonable to infer that Chief Salisbury notifiedhis superiors that he had been served with the Complaint and thatthose superiors were the Cornell Defendants who employedSalisbury, rather than the non-existent entity named in theoriginal Complaint. Therefore, the Cornell Defendants hadadequate notice of the institution of this action within the timeperiod prescribed by the Federal Rules.

Second, despite Plaintiff's pro se draftsmanship, the substanceof his original Complaint makes it clear that Plaintiff intendedto sue the entity in charge of daily operations at the WyattFacility and the employer of the individuals who committed thealleged violations of his constitutional rights. See AyalaSerrano, 909 F. Supp. 2d at 12 (noting that the pleadings of prose litigants are to be liberally construed). See also LegalCompl., at paras 1 & 7-22. That entity is Cornell Correctionsand not the Donald W. Wyatt Detention Facility, which is only thename of the building in which Plaintiff was incarcerated. Sincethe substance of the original Complaint pertains to the CornellDefendants, that original Complaint was reasonably calculatedunder the circumstances to apprise all interested parties,including the Cornell Defendants, of the pending action.

As to the third reason, the Cornell Defendants had constructivenotice of the institution of this action because they share anattorney with the original Defendants. Each Defendant in thisaction is represented by Dennis T. Grieco, Esq., who should haveknown that the Cornell Defendants would eventually become partiesto this litigation given this Court's previous findings that"Wyatt" was the name of a building rather than an entity amenableto suit, as well as his own representations that the CornellDefendants run the Wyatt Facility and employ the individuals whowork there on a daily basis. See Report & Recommendation, at26-27 (quoting Tr. of June 29, 2000 Hr'g., at 17). In addition,Plaintiff does not need to utilize the "identity of interests"concept because the Amended Complaint presents a situation inwhich Plaintiff seeks to bring the same entity into this lawsuitbut, this time, under its proper name. See Pineda,982 F. Supp. at 97 (noting that reliance on the identity of interestsconcept is unnecessary when an amended complaint seeks to bringin the same, rather than a closely-related, entity under itsproper name).

Finally, the Cornell Defendants have not demonstrated anyprejudice because they are required to defend the case at thispoint in the litigation. See Ayala Serrano,650 F. Supp. at 727 (finding that the notice requirement ofRule 15(c)(3) was satisfied when the defendant had not demonstrated anyprejudice in maintaining a defense due to an alleged lack of notice). Thereis no indication that crucial witnesses are unavailable, thatevidence has been destroyed, or of any personal inconvenience tothe Cornell Defendants. See id. Given these circumstances andthe fact that the Cornell Defendants received constructive noticeof this action within the applicable time period, this Court isunable to find any prejudice resulting from the delay in addingthe Cornell Defendants to this lawsuit. For all of these reasons,this Court concludes that the Cornell Defendants receivedsufficient notice of the institution of the present action withinthe time period provided for in Rule 4(m) and thus, will not beprejudiced by having to defend this lawsuit even though thestatute of limitations has expired.

Plaintiff's Original Complaint Mistakenly Named a Non-ExistentEntity Rather Than the Cornell Defendants and the Substance ofthat Complaint Gave the Cornell Defendants Notice that PlaintiffWould Have Initially Named them as Defendants but for thisMistake.

The final element of the relation-back doctrine requiresPlaintiff to show that the Cornell Defendants knew or should haveknown that Plaintiff would have brought this action against thembut for Plaintiff's mistake as to the identity of the properdefendants. Fed.R. Civ. P. 15(c)(3)(B); Leonard,219 F.3d at 28; Felix, 811 F. Supp. at 128(citing Kilkenny v. Arco MarineInc., 800 F.2d 853, 857 (9th Cir. 1986)) This final element isdesigned to resolve the problem of a misnamed defendant and allowa party to correct a formal defect in his or her pleadings, suchas a misnomer or misidentification. Preston v. Settle DownEnters., Inc., 90 F. Supp. 2d 1267, 1277 (N.D.Ga. 2000) (citingFed.R. Civ. P. 15(c)(3), Advisory Committee Notes to 1991Amendment); accord Manney, 151 F. Supp. 2d at 996; Taylor v.City of Winnfield, 191 F.R.D. 511, 514 (W.D.La. 2000); Byrd,964 F. Supp. at 145. Judge Martin concluded that the service ofthe original Complaint upon the Wyatt Facility by placing theComplaint in Salisbury's hands gave notice to the CornellDefendants such that they knew or should have known, but forPlaintiff's mistake concerning the identity of the proper party,he would have initially brought this action against the CornellDefendants. Report & Recommendation, at 13.

The Cornell Defendants object to this conclusion and argue thatPlaintiff's failure to initially name them as defendants was nota case of mistaken identity but rather a conscious choice toexclude the Cornell Defendants from this litigation. CornellDefs.' Mem., at 9. They assert that Plaintiff knew of theCornell Defendants' involvement in the operation of the WyattFacility before he filed the original Complaint and deliberatelychose not to investigate that involvement or bring the CornellDefendants into this litigation before the statute of limitationsexpired. Id. Therefore, the Cornell Defendants argue, theAmended Complaint does not relate back pursuant to Rule 15(c)(3).Given the leniency afforded to pro se litigants and this Court'sconclusion that Plaintiff mistakenly named the Wyatt Facilityinstead of the Cornell Defendants in his original Complaint, thisCourt agrees with Judge Martin and finds that the final criterionfor relation back has been satisfied.

A misnomer is a mistake in naming a person, place, or thing,especially in a legal instrument, Black's Law Dictionary, at1015 (7th ed. 1999); while a mistake is an incorrect action orstatement that follows from faulty judgment, inadequateknowledge, or inattention. Leonard, 219 F.3d at 28(citingWebster's Ninth New Collegiate Dictionary, at 760 (1983)). Seealso Black's Law Dictionary, 1017 (7th ed. 1999) (definingmistake as "an error, misconception, or misunderstanding; anerroneous belief"). By definition, every mistake involves anelement of negligence, carelessness, or fault and the language ofRule 15(c)(3) does not distinguish among types of mistakesconcerning identity. Leonard, 219 F.3d at 29. Thus, the Ruleencompasses both easily avoidable and serendipitous mistakes.Id. For example, naming a non-existent federal agency or aretired officer are mistakes covered by Rule 15(c)(3) even thoughreasonable diligence will almost always prevent these mistakesfrom occurring. Id. (citing Fed.R. Civ. P. 15 advisorycommittee's note (1966 Amendment)). See also VKK Corp.,244 F.3d at 129(naming a non-existent entity was a mistake within themeaning of Rule 15(c)(3)); William H. McGee & Co. v. M/V MingPlenty, 164 F.R.D. 601, 606 (S.D.N.Y. 1995) (holding that themisidentification of similarly-named or related companiespresents the "classic case" for the application of therelation-back principle set forth in Rule 15(c)).

The inquiry into whether or not a mistake occurred is objectiveand requires the court to consider the totality of thecircumstances and the relevant facts at issue. Bowden,124 F. Supp. 2d at 1242. The court must inquire into what the plaintiffknew, or thought he or she knew, at the time the originalpleading was filed. Leonard, 219 F.3d at 29(citing Wells v.HBO & Co., 813 F. Supp. 1561, 1567 (N.D.Ga. 1992)). Knowledgethat a plaintiff acquired after filing an original complaintcarries no weight in this determination. Id. (citingKilkenny, 800 F.2d at 856). Post-filing events, includinginaction despite new information, may be relevant to the extentthat such events shed light on the plaintiff's state of mind atthe time the original complaint was filed or inform the addedparty's reasonable belief as to why the plaintiff omitted thatparty from the original complaint. Id., at 30.

The totality of the circumstances presented in this caseindicate that Plaintiff's naming of the Donald W. Wyatt DetentionFacility rather than the Cornell Defendants was a mistake andthat the notice to the Cornell Defendants was sufficient so thatthose Defendants should have known that, but for this mistake,Plaintiff would have named them in the original Complaint. Ininitially naming the Wyatt Facility, Plaintiff mistakenly madethe name of a building, a non-existent entity, a defendant inthis case. See Sarro v. Cornell Corrections, Inc.,248 F. Supp. 2d 52, 62, n. 2 (D.R.I. 2003) (noting that the WyattFacility is not a legal entity that may be sued). See alsoFreund v. Fleetwood Enters., Inc., 956 F.2d 354, 361 (1st Cir.1992) (discussing a motion to amend after the plaintifforiginally named an entity with no legal existence that wasnothing more than a name). This incorrect action followed fromPlaintiff's erroneous belief that the Wyatt Facility was anentity amenable to suit and in charge of daily operations duringthe time of Plaintiff's incarceration. Moreover, Plaintiff'smistake was due in part to the fact that he was misled by thestaff at the Wyatt Facility, including Salisbury who toldPlaintiff that the Cornell Defendants had an ownership interestin the facility but refused to reveal the Cornell Defendants'address or location. See GSI Lumonics, Inc. v. BiodiscoveryInc., 112 F. Supp. 2d 99, 104 (D.Mass. 2000) (noting that anamended complaint relates back when it arises out of aplaintiff's reasonable mistake that was based on misleading orinaccurate assertions of ownership by a defendant). AtPlaintiff's request, a Gina McCarthy called the Wyatt Facilityand was told by the receptionist that the Wyatt Facility andCornell Corrections share the same address and phone number andare "one in the same." Aff. of Gina McCarthy, at paras. 2 & 3,attached to Pl.'s Mot. to Take Leave in Order to Am. Pl.'sCompl. These facts, when taken together, lead this writer toconclude that when Plaintiff filed his original Complaint heintended to and thought that he was suing the entity in charge ofdaily operations at the Wyatt Facility and the employer of theprison guards with whom he interacted, but made a reasonablemistake and named a non-existent entity rather than the CornellDefendants.

This not a situation in which Plaintiff lacked knowledge of theproper party. See Leonard, 219 F.3d at 31(citing Wilson v.United States, 23 F.3d 559, 563 (1st Cir. 1994)) (noting thatthere is no mistake when a plaintiff merely lacks knowledge ofthe proper party such that he or she intends to sue one party,does so, and that person or entity turns out to be the wrongparty). See also King v. One Unknown Fed. Corr. Officer,201 F.3d 910, 914 (7th Cir. 2000) (citations omitted) (holding thatRule 15(c)(3) provides for relation back only to correct themistakes made by a plaintiff suing official bodies in determiningthe proper defendant and not where the plaintiff fails toidentify the proper party); Worthington v. Wilson, 8 F.3d 1253,1257-58 (7th Cir. 1993) (affirming a decision preventing theplaintiff from utilizing the relation-back doctrine where theinitial failure to name the new defendants stemmed from a lack ofknowledge of their identities and not a mistake in their names);accord Manney, 151 F. Supp. 2d at 996; Taylor,191 F.R.D. at 514. Rather, Plaintiff admitted that while he was at the WyattFacility, Salisbury told him that the Cornell Defendants ownedthe Wyatt building. Report & Recommendation, at 26 (quotingTr. of June 29, 2000 Hr'g., at 8-9; Cornell Defs.' Mem., atEx. D, p. 4. Despite this knowledge, there is no evidence toindicate that Plaintiff made a deliberate decision not to sue theCornell Defendants and to proceed against the Wyatt Facilityinstead. See Leonard, 219. F.3d at 29(quoting Wells v. HBO &Co., 813 F. Supp. 1561, 1567 (N.D.Ga. 1992)) (holding that amistake does not include a deliberate decision not to sue a partywhose identity the plaintiff knew from the outset); accordShea, 208 F.3d at 720. See also, 6A Wright, et al., supra,§ 1498, at 142 (2d ed. 1990 & 2004 Pocket Part) (noting thatnotwithstanding adequate notice to the new party, an amendmentsubstituting the proper party will not be allowed when theplaintiff's inexcusable neglect was responsible for the failureto name the correct party). This is not a case in which Plaintiffintended to sue Wyatt, did so, and then turned out to beincorrect. Rather, given that the body of Plaintiff's Complaintindicates that he sought to impose liability on the entityresponsible for employing the prison officials and overseeing thedaily operations of the Wyatt Facility and the leniency affordedto prisoners proceeding pro se, this Court concludes that whenPlaintiff filed his original Complaint, he intended and thoughthe was suing that entity. However, in reality, Plaintiffmistakenly named as a Defendant, the "Donald W. Wyatt DetentionCenter," the name of a building and a non-existent entity thatdid not employ Salisbury, Singleton, Johnson, or any other prisonofficial. Therefore, this writer agrees with Judge Martin'sconclusion that the Cornell Defendants received sufficient noticeof this action and should have known that Plaintiff would havenamed them in his original Complaint but for his mistake.

For these reasons, this Court overrules the Cornell Defendants'objection to Judge Martin's conclusion that the claims assertedagainst the Cornell Defendants in Plaintiff's Amended Complaintrelate back to the filing of the original Complaint andtherefore, are not barred by the statute of limitations. Therehas been no dispute that the Amended Complaint arises out of thesame transactions or occurrences as the original Complaint, thatbeing Plaintiff's incarceration at the Wyatt Facility. Given theservice on Salisbury, as well as the facts that the body of theoriginal Complaint essentially refers to the Cornell Defendants,all of the Defendants in this lawsuit share the same attorney andthat Plaintiff mistakenly named a non-existent entity in hisoriginal Complaint, this Court concludes that the CornellDefendants received adequate notice of this action within theextended time period provided for in Rule 4(m) and willtherefore, not be prejudiced in being forced to defend theinstant case on the merits. Finally, the notice was such that theCornell Defendants should have known that Plaintiff would havesued them originally but for his mistake in naming the WyattFacility rather than the Cornell Defendants. Therefore, Plaintiffsatisfies the requirements for relation back set forth in Rule15(c)(3) and may use his Amended Complaint to correct themisnomer or misidentification that plagues his original Complaintand avoid the bar set by the three year statute of limitationsapplicable to cases brought pursuant to 42 U.S.C. §§ 1981 and1983 and Bivens. Since these claims are not time barred, thisCourt now turns to the issue of whether or not Plaintiff haspresented viable claims for relief against the CornellDefendants.

Plaintiff's Claims Against the Cornell Defendants Pursuant to42 U.S.C. § 1981 Must be Dismissed Because Plaintiff did notAllege any Discrimination Based on Race.

This Court agrees with Judge Martin's conclusion to dismissPlaintiff's claims brought under 42 U.S.C. § 1981 becausePlaintiff's failure to allege that any Defendant discriminatedagainst him based on his race precludes Plaintiff from stating aclaim upon which relief can be granted under § 1981. Report &Recommendation, at 14. A plaintiff must allege facts to supportthree elements in order to establish a claim under42 U.S.C. § 1981: 1)the plaintiff is a member of a racial minority; 2)thedefendant intended to discriminate against the plaintiff based onthe plaintiff's race; and 3)the discrimination concerned anactivity enumerated by the statute. Mian v. Donaldson, Lufkin &Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993) (citationsomitted); Olivera v. Town of Woodbury, 281 F. Supp. 2d 674, 684(S.D.N.Y. 2003). See also 42 U.S.C. § 1981 (1991) (listing theactivities covered by the statute). A claim arises under Section1981 when a plaintiff is deprived of the full and equal benefitsof the law and proceedings that are afforded to Caucasiancitizens. Olivera, 281 F. Supp. 2d at 684 (citations omitted).Therefore, it is essential that a plaintiff establish that thedefendant's actions were purposefully discriminatory and raciallymotivated. Id. (citing Albert v. Carovano, 851 F.2d 561, 571(2d Cir. 1988)).

This Court needs to look no further than the first elementrequired to state a claim under 42 U.S.C. ___ 1981 to concludethat Plaintiff's § 1981 claims must be dismissed for failureto state a claim upon which relief can be granted. The AmendedComplaint does not allege that Plaintiff is a member of a racialminority. See Am. Compl.. In addition, Plaintiff's§ 1981 claim fails on the second element because while Plaintiffalleges religious discrimination against Catholics, he does notmake any allegations of racial discrimination. See Am. Compl.,at para. 16. See also United States v. Cruikshank, 92 U.S. 542,555 (1875) (noting that there is no question presented under theCivil Rights Act of 186611 when there were no allegationsthat the wrong contemplated against the plaintiffs was on accountof their race or color). Therefore, this Court agrees with JudgeMartin that Plaintiff is unable to state any § 1981 claimsagainst the Cornell Defendants and therefore those claims must bedismissed.

Plaintiff's Bivens Claims Must be Dismissed Because theCornell Defendants are Private Corporations and are not FederalAgents.

Judge Martin concluded that the Cornell Defendants' status asprivate entities did not preclude Plaintiff from stating Bivensclaims against those Defendants. Report & Recommendation, at16. The Cornell Defendants disagree and argue that their privatestatus protects them from Plaintiff's Bivens claims based onthe Supreme Court's decision in Correctional ServicesCorporation v. Malesko, 534 U.S. 61 (2001). Supplemental Mem.of Law of Defs.' Cornell Corrs. of R.I., Inc., Cornell Corrs.Corp., Wayne Salisbury, Jean Singleton, & Sharon Johnson as the Ct. on June 20, 2003, (hereinafter, Defs.' SupplementalMem.) at 24. This Court agrees with the Cornell Defendants andconcludes that Plaintiff does not have Bivens claims againstthose private corporations because they are clearly not federalagents.

The Supreme Court has limited Bivens to Claims ofConstitutional Violations by Federal Officers.

In Bivens v. Six Unknown Named Agents of the Federal Bureau ofNarcotics, the Supreme Court created a federal cause of actionfor money damages against federal agents for allegedconstitutional violations. 403 U.S. 388, 397 (1971) (emphasisadded); Carlson v. Green, 446 U.S. 14, 18 (1980); ErwinChemerinsky, Federal Jurisdiction, § 9.1.2, at 570 (3d ed.1999). Despite its initial activism in creating this cause ofaction, the Supreme Court has since responded cautiously toinvitations to extend a Bivens remedy in new contexts and infact, has done so only twice. Malesko, 534 U.S. at 67-8 &70(noting that since Carlson, the Court has consistentlyrefused to extend Bivens liability to any new context orcategory of defendants); Fed. Deposit Ins. Corp. v. Meyer,510 U.S. 471, 484 (1994) (quoting Schweiker v. Chilicky,487 U.S. 412, 421 (1988)); See also Carlson, 446 U.S. at 18(finding aBivens cause of action for violations of the Eighth Amendment'sguarantee against cruel and unusual punishment); Davis v.Passman, 442 U.S. 228, 242 (1970) (extending Bivens to providea remedy for violations of the Fifth Amendment's Due ProcessClause). See also Joseph G. Cook & John R. Sobieski, Jr.,Civil Rights Actions, § 14.02, at 14-24, 14-25 (2003) (notingthat Bivens has been limited to causes of action againstfederal officials who act under the authority of federal law).

In order to state a Bivens cause of action, a plaintiff mustshow that the defendants: 1)are federal agents; 2)act under colorof their authority; and 3)engage in unconstitutional conduct.See Bivens, 403 U.S. at 389; Cook & Sobieski, supra, §14.02[A], at 14-25. At the very least, the defendants must befederal agents. See generally, Carlson, 446 U.S. at 18; Butzv. Economou, 438 U.S. 478, 503 (1978) (both explaining that aBivens remedy is available to a victim of a constitutionalviolation by a federal agent); Mathis v. Pac. Gas & Elec. Co.,75 F.3d 498, 503 (9th Cir. 1996) (finding that it was error notto dismiss a Bivens claim absent proof that the defendant wasan agent of the federal government); Vector Research Inc. v.Howard & Howard Attorneys, 76 F.3d 692, 698 (6th Cir. 1996)(holding that the plaintiffs alleged enough facts on the issue ofwhether the defendants were federal agents to survive a motion todismiss their Bivens claim); Christian v. Crawford,907 F.2d 808, 810 (8th Cir. 1990) (affirming a denial of leave to amend toadd a Bivens claim against attorneys whose appointments by afederal court do not make them federal officials); Wagner v.Metro. Nashville Airport Auth., 772 F.2d 227, 230 (6th Cir.1985) (affirming the dismissal of a Bivens claim because theplaintiffs did not allege that the defendants were federalagents); Beard v. Mitchell, 604 F.2d 485, 489 (7th Cir. 1979)(Bivens suit brought against a federal agent); Fletcher v.R.I. Hosp. Trust Nat'l. Bank, 496 F.2d 927, 932, n. 8 (1st Cir.1974) (noting that there is no Bivens cause of action againstprivate parties acting under color of federal law or custom);Miller v. Suffolk County House of Corr., No. 01-11331, 2002 WL31194866, at *4 (D. Mass. Sept. 27, 2002) (dismissing a Bivensclaim because it was brought against state officials and notagainst any federal defendants); Lipsett v. Univ. of P.R.,576 F. Supp. 1217, 1221 (D.P.R. 1983) (noting that Bivensrecognized a cause of action for damages against federalofficers). But see, Erwin Chemerinsky, Federal Jurisdiction,§ 9.1, at 589 (3d ed. 1999) (noting that although the weight ofauthority seems to favor Bivens suits against privateindividuals acting under color of federal law, the Circuit Courtsare split on the question and the Supreme Court has not soextended this principle).

Although the rationales and standards regarding state andfederal action for purposes of suits pursuant to 42 U.S.C. § 1983and Bivens, are often applied interchangeably, see Vincentv. Trend W. Technical Corp., 828 F.2d 563, 567 (9th Cir. 1987),federal courts have clearly distinguished these two remedies forconstitutional violations by applying § 1983 to actions by stateofficials and Bivens to similar actions by federal officials.See Butz, 438 U.S. at 500 & 503; Carlson, 446 U.S. at 25;Wigginton v. Centracchio, 205 F.3d 504, 511-12 (1st Cir. 2000);Gordon v. Hansen, 168 F.3d 1109, 1113 (8th Cir. 1999) (quotingChristain v. Crawford, 907 F.2d 808, 810 (8th Cir. 1990))(noting that a Bivens action is almost identical to one broughtunder 42 U.S.C. § 1983, except that the former is maintainedagainst federal officials while the latter is against stateofficials); Wright v. Park, 5 F.3d 586, 591 (1st Cir. 1993);Roman v. Townsend, 48 F. Supp. 2d 100, 104 (D.P.R. 1999). Seealso Meuse v. Pane, 322 F. Supp. 2d 36, 39 (D. Mass. 2004),available at, 2004 U.S. Dist. LEXIS 10674, *7(noting that theplaintiff did not have a § 1983 claim against officials of theFederal Bureau of Investigation or a Bivens claim against aprivate entity); accord Inmates of MDC Guaynabo v. Franco,896 F. Supp. 248, 250 (D.P.R. 1995).

The Supreme Court's decisions in Federal Deposit InsuranceCorporation v. Meyer, 510 U.S. 471 (1994), and CorrectionalServices Corporation v. Malesko, 534 U.S. 61 (2001), furtherindicate that Bivens claims are limited to the actions offederal officers and will not be extended. Since the purpose ofBivens was to deter a federal officer, the Supreme Court hasrefused to expand the category of defendants to whom a Bivenscause of action applies to encompass federal agencies or privatecorporations. Meyer, 510 U.S. at 473 & 485(emphasis in theoriginal); Malesko, 534 U.S. at 70-71. The Supreme Courtreasoned that extending Bivens to include suits against privatecorporate defendants would compromise the initial purpose of theBivens doctrine because it would lead plaintiffs to focus theircollection efforts on corporate entities rather than on theindividuals who are directly responsible for the allegedinjuries. Malesko, 534 U.S. at 70-71.

The Malesko Decision is Dispositive of Plaintiff's BivensClaims Against the Cornell Defendants.

The Supreme Court's Malesko decision is dispositive ofPlaintiff's Bivens claims. Like the defendant in Malesko, theCornell Defendants are private corporations. Since the SupremeCourt was unwilling to find a Bivens cause of action against aprivate corporation operating a halfway house under a contractwith the Federal Bureau of Prisons, this Court sees no reason toallow an extension of Bivens to encompass the CornellDefendants, who are private corporations acting under a contractwith the CFDFC, a creature of Rhode Island law. Unlike thenumerous cases cited above in which the courts allowed Bivensactions to proceed, the Cornell Defendants are neither individualofficers nor federal agents. Allowing Plaintiff's Bivens claimsto proceed against these private corporations would shift thisCourt's focus from the individuals directly responsible for thealleged constitutional violations to private corporations,thereby contradicting the precedent and policies set by theSupreme Court. See Stoutt v. Banco Popular de Puerto Rico,320 F.3d 26, 33 (1st Cir. 2003) (citing Malesko, 534 U.S. 61)(noting that the Supreme Court has limited Bivens by refusingto extend it to private entities acting under color of federallaw). Instead, this Court chooses to follow Malesko andconcludes that Plaintiff is unable to maintain a Bivens causeof action against the private, corporate Cornell Defendants.See Meuse, 322 F. Supp. 2d at 38, available at, 2004 U.S.Dist. LEXIS, at *6(citing Malesko and holding that a Bivensclaim is not available against a private entity even if thatentity acts under color of federal law); Peoples v. CCA Det.Ctr., No. 03-3129, 2004 WL 74317, at *4 (D.Kan. Jan. 15, 2004)(holding that Malesko precludes Plaintiff's Bivens claimagainst a corporation); accord Sarro v. Cornell Corrections,Inc., 248 F. Supp. 2d 52, 62 (D.R.I. 2003); Howe v. Bank forInt'l. Settlements, 194 F. Supp. 2d 6, 30 (D.Mass. 2002); JamesWm. Moore, 17A Moore's Federal Practice, § 124.41[2][b] (3d ed.2004).

Alternatively, the Availability of a Remedy under42 U.S.C. § 1983 Requires this Court to Hesitate in Extending Bivens to CoverCauses of Action Against Private Individuals or Entities.

Even absent the mandate of the Malesko decision, this Courtwould not allow Plaintiff's Bivens claims to proceed becausedoing so would cause an unwarranted extension of Bivens toinclude causes of action against private individuals or entities.When there is a request for the judicial creation of a damagesremedy arising under the Constitution, as is the case here,Bivens instructs this Court to proceed with caution. Kostka v.Hogg, 560 F.2d 37, 42 (1st Cir. 1977). This Court must carefullyassess the existing remedies and consider the extent to whichCongress or the courts have determined that a Bivens remedyshould be unavailable in cases such as the one before this Court.Id. (citing Comtronics v. PRTC, 553 F.2d 701, 707 (1st Cir.1977)).

The determination of whether or not to imply a Bivens remedyturns on whether there are special factors counseling hesitationabsent an affirmative action by Congress, explicit statutoryprohibitions against the relief sought, and/or exclusivestatutory alternatives. Bivens, 403 U.S. at 396-97;Schweiker, 487 U.S. at 2467; Bush, 462 U.S. at 2411;Kostka, 560 F.3d at 42; Sarro, 248 F. Supp. 2d at 57 (citingBush, 462 U.S. at 374-78). In this case, all threeconsiderations are intertwined because, while there is noexplicit statutory prohibition against the relief Plaintiffseeks, there is a statutory alternative, 42 U.S.C. § 1983.Coupled with the fact of the Cornell Defendants' private status,the existence of a statutory alternative provides an additionalfactor supporting the Court's decision not to extend Bivens.See Downie v. City of Middleburg Heights, 301 F.3d 688,696-97 (6th Cir. 2002) (noting that an existing comprehensivelegislative scheme that provides a meaningful remedy is a specialfactor counseling hesitation in implying a Bivens cause ofaction); Zerilli v. The Evening News Ass'n., 628 F.2d 217, 224(D.C. Cir. 1980) (noting that the defendant's private statusshould counsel similar hesitation). See also Molina v.Richardson, 578 F.2d 846, 853 (9th Cir. 1978) (citationsomitted) (noting that a plaintiff with a statutory cause ofaction directly under the Constitution (42 U.S.C. § 1983) was ina different position than the plaintiff in Bivens, where it wasdamages or nothing). But see, Sarro, 248 F. Supp. 2d at 61(noting that Congress has not provided any comprehensive schemeor meaningful alternative remedy to inmates at privately operatedprisons).

Section 1983 derives from the Civil Rights Act of 1871, alsoknown as the Ku Klux Klan Act of 1871, and was created to curbunconstitutional behavior by state officials. Bell,746 F.2d at 1232; Rodney E. Smolla, Civil Rights Actions, § 14.2 (3d ed.2001) (citing Wilson v. Garcia, 471 U.S. 261, 276 (1985);Monroe v. Pape, 365 U.S. 167, 171 (1961)); Erwin Chemerinsky,supra, § 8.2, at 454-55; Cook & Sobieski, supra, § 1.27(2004) (citing Cong. Globe, 42d Cong., 1st Sess. 244 (1871)(noting that the Ku Klux Klan Act grew out of President Grant'srequest for legislation to correct the evils that were beyond thecontrol of state authorities)). Thus, the purpose of42 U.S.C. § 1983 was to place the federal courts between the states and theircitizens so that the courts could protect citizens fromunconstitutional actions committed under color of state law.Mitchum v. Foster, 407 U.S. 225, 242 (1972) (citationsomitted). In order to establish a cause of action under Section1983, a plaintiff must allege the violation of a right protectedby the Constitution or laws of the United States and demonstratethat the defendant acted under color of state law. Parratt v.Taylor, 451 U.S. 527, 535 (1981).12 A defendant actsunder color of state law for purposes of 42 U.S.C. § 1983 when:1)there is a close nexus between the state and the defendant,Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974);Rodriguez-Garcia v. Davilla, 904 F.2d 90, 97 (1st Cir. 1990);2)the state and a private defendant are interdependent such thatthe state must be recognized as a joint participant in thechallenged activity, Burton v. Wilmington Parking Auth.,365 U.S. 715, 721-22 (1961); or 3)the state delegates authority tothe defendant with respect to a public function that istraditionally the exclusive prerogative of the state.Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982); Ponce v.Basketball Fed'n. of P.R., 760 F. 2d 375, 381 (1st Cir. 1985).

The plaintiff in Bivens was unable to assert a claim under42 U.S.C. § 1983 because agents of the Federal Bureau of Narcotics,and not state officials, entered the plaintiff's apartment andallegedly used unreasonable force to arrest him without a warrantor probable cause. Bivens, 403 U.S. at 389. Traditional commonlaw tort remedies were also unavailable to the plaintiff inBivens due to the doctrine of sovereign immunity. See id.,at 410 (Harlan, J., concurring). Absent any alternative statutoryor common law remedies, the Court was forced to create a newcause of action because, as Justice Harlan stated, "for people inBivens' shoes, it is damages or nothing." Id. at 410.

The instant case is distinguishable in that Plaintiff had anadequate remedy available to him under 42 U.S.C. § 1983 becauseDefendants acted under color of state law when they performed thetraditional public function of prison operations. SeeRodriguez-Garcia, 904 F.2d at 98(noting that conducting prisonoperations is a public function despite privatization and thataction under color of state law may be found). See also Streetv. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996) (notingthat private prison guards acted under color of state law forpurposes of § 1983); Skelton v. Pri-Cor, Inc., 963 F.2d 100,102 (6th Cir. 1991) (noting that a private corporation operatinga prison acted under color of state law for purposes of § 1983).The availability of this relief precludes this Court fromimplying a Bivens cause of action against the CornellDefendants. See Williams v. Bennett, 689 F.2d 1370, 1390(11th Cir. 1982) (noting that the alternative remedy availableunder 42 U.S.C. § 1983 was an adequate substitute for andprecluded the implication of a direct constitutional cause ofaction against state officials); Jackson v. District ofColumbia, 672 F. Supp. 22, 28 (D.D.C. 1987) (noting that theplaintiff's Bivens claims were foreclosed by the alternativeremedy available under 42 U.S.C. § 1983); Bagley v. Hoopes, No.81-1126, 1985 WL 17643, at *6 (D.Mass. Aug. 6, 1985) (noting thatthere is no need to imply a constitutional cause of action whenrelief is available under § 1983); accord Leite v. City ofProvidence, 463 F. Supp. 585, 587 (D.R.I. 1978); Cook &Sobieski, supra, § 14.02[B], at 14-27.

Plaintiff has an available remedy under 42 U.S.C. § 1983because Defendants acted under color of state law when theycarried on the traditional public function of prison operationsat the Wyatt Facility. In enacting the Municipal DetentionFacility Corporations Act, the Rhode Island General Assemblydelegated the traditional public function of prison operations toa municipality, which then created a corporation to own andoperate a detention facility. See R.I. Gen. Laws §§ 45-54-1,45-54-2(c). That municipality was the City of Central Falls. TheCentral Falls City Council adopted a plan to create the CentralFalls Detention Facility Corporation, ("CFDFC") which became theowner and operator of the Wyatt Facility. R.I. Gen. Laws §45-54-2. The CFDFC received financing to construct the WyattFacility from the Rhode Island Port Authority, and by contract,delegated its authority to operate the prison to the CornellDefendants.

The Cornell Defendants and the individuals they employ actunder color of state law for purposes of 42 U.S.C. § 1983 becausethey are able to trace their traditional public function ofprison operations to the CFDFC, the City of Central Falls, andfinally, to the State of Rhode Island The fact that Plaintiffwas incarcerated at the Wyatt Facility while awaiting a federaltrial is fortuitous because the officials who committed thealleged constitutional violations derived their authority overPlaintiff from state rather than federal law.13 Thus, theproper cause of action against these Defendants is under42 U.S.C. § 1983. The availability of relief under 42 U.S.C. § 1983distinguishes this case from Bivens and provides the statutoryalternative and special factor that counsels this Court'shesitation and guides its decision that Plaintiff does not have aBivens cause of action against any Defendant in thiscase.14 See Kostka, 560 F.2d at 42 (noting that theavailability of a remedy under 42 U.S.C. § 1983 distinguished thecase from Bivens and may render a Bivens analysisinappropriate).

This writer respectfully disagrees with the decision in Sarrov. Cornell Corrections, Inc., 248 F. Supp. 2d 52, 61 (D.R.I.2003) (authored by my esteemed colleague Chief Judge Torres), toallow a Bivens claim to proceed against private individuals,the correctional officers at the Wyatt Facility. The SarroCourt treated the Bivens requirements that the defendants befederal officials and act under color of federal law asinterchangeable. See, 248 F. Supp. 2d at 59 (holding that"Bivens applies to constitutional violations committed byprivate parties only if they act `under color of federal law;' orput another way, only if the parties are `federal actors'").However, the requirements are not interchangeable, but are twoseparate elements that must be met in order to maintain aBivens cause of action. See Bivens, 403 U.S. at 389(holding that constitutional violations by federal agents who actunder color of their authority give rise to a cause of action fordamages). In this case, an analysis of whether or not anyDefendant acted under color of federal law is unnecessary becauseall of the Defendants are private actors and therefore had nofederal authority under which to act.

This writer also disagrees with the conclusion in Sarro thatthe plaintiff lacked any other effective remedy for the allegedviolations of his constitutional rights.248 F. Supp. 2d at 63-64. For the reasons previously mentioned, theindividual prison guards at the Wyatt Facility carry out a traditionalpublic function, derive their authority over Plaintiff from statelaw and, therefore, act under color of state law for purposes of§ 1983. It is to be noted that, at times, the Wyatt Facilityhouses state sentenced prisoners. The power to incarcerate anddiscipline those prisoners is derived from the same sources asthe power to detain federal prisoners — ultimately, Rhode Islandlaw. Therefore, Plaintiff had adequate relief available to himunder § 1983, which precludes the need to imply a similar causeof action under Bivens. See Malesko,534 U.S. at 72-74(refusing to imply a Bivens remedy, in part, becauseplaintiff had a remedy against the private defendants under statenegligence law); accord Peoples, 2004 WL at *6.

Finally, the Sarro Court expressed concern that refusing toallow a federal prisoner to assert a Bivens claim due to thatprisoner's incarceration at a privately-operated facility woulddeprive the prisoner of a remedy that is available to thoseincarcerated at government-operated facilities and would runcounter to the desire for parity of remedies expressed by theSupreme Court in Malesko. 248 F. Supp. at 63. This writerdisagrees once again. Refusing to imply a Bivens action againstprivate individuals does not run counter to but rather followsestablished federal court precedent that 42 U.S.C. § 1983 andBivens provide parallel remedies for violations ofconstitutional rights with the former applying to violationscommitted by state officials and the latter to the actions offederal officials. See Meuse, 322 F. Supp. 2d at 38,available at, 2004 U.S. Dist. LEXIS, at *5(citing Rogers v.Vicuna, 264 F.3d 1, 4 (1st Cir, 2001) (stating that Section 1983cannot form the basis of an action against individuals actingunder color of federal law)); Small, 547 F. Supp. at 764(notingthat the Supreme Court's decision in Carlson v. Greenimplicitly counsels that § 1983 and not Bivens is theappropriate vehicle for redressing constitutional claims againststate officials) (emphasis in the original); Cook & Sobieski,supra, § 14.02[B], at 14-27(noting that constitutionallyimplied causes of action are unavailable to plaintiffs seeking tohold state and local officials liable for their unconstitutionalconduct under color of state law). The only difference in therelief available to prisoners incarcerated at a private versus agovernment-operated prison lies in the name of the applicablecause of action used to address alleged violations of theirconstitutional rights. See Kelly v. Serna, 87 F.3d 1235, 1238(11th Cir. 1996) (noting that Bivens actions are quite similarto those brought under 42 U.S.C. § 1983); Abella v. Rubino,63 F.3d 1063, 1065 (11th Cir. 1995) (noting that "the effect ofBivens was to create a remedy against federal officers actingunder color of federal law that was analogous to the Section 1983action against state officials"). For all of these reasons, thiswriter disagrees with the Sarro decision and declines to extendBivens to apply to the private individuals and entities in thiscase who act under color of state law.

Plaintiff's Claims for Violations of his Privacy Rights byFemale Officers Fall Under 42 U.S.C. § 1983 and are not Beforethis Court Because of Plaintiff's Failure to Object to JudgeMartin's Recommendation that the § 1983 Claims Against theCornell Defendants be Dismissed.

Judge Martin recommended that this Court deny the CornellDefendants' motion to dismiss all of Plaintiff's claims forviolations of the First or Fourth Amendments when the CornellDefendants' female employees allegedly observed Plaintiff whilehe showered and performed bodily functions. Report &Recommendation, at 23. This Court notes that it is really theFourteenth Amendment that applies and incorporates the First andFourth Amendments with regard to state action. Forest v.Pawtucket Police Dep't., 290 F. Supp. 2d 215, 230 (D.R.I. 2003),aff'd, 377 F.3d 52 (1st Cir. 2004) . In addition,constitutional claims of this nature asserted against prisonofficials are usually brought pursuant to 42 U.S.C. § 1983. SeeFortner v. Thomas, 983 F.2d 1024, 1026 (11th Cir. 1993) (usingSection 1983 to allege that correctional officials violatedinmates' constitutional rights to privacy); accord Cornwell v.Dahlberg, 963 F.2d 912, 913 & 916 (6th Cir. 1992); Timm v.Gunter, 917 F.2d 1093, 1097 (8th Cir. 1990); Cumbey v.Meachum, 684 F. 2d 712, 713 (10th Cir. 1982). Therefore, thisCourt concludes that Plaintiff should have pled his claims forviolations of his privacy rights by female officials under42 U.S.C. 1983.

Although Section 1983 claims against the Cornell and individualDefendants were available to Plaintiff, the viability of thoseclaims is not before this Court due to Plaintiff's failure toobject to Judge Martin's conclusions regarding Plaintiff's § 1983claims. Since Plaintiff's claims for violations of his privacyrights by female officials fall under § 1983, those claims arealso not before this Court. Therefore, procedurally, this Courtis unable to review Judge Martin's recommendation to dismissPlaintiff's § 1983 claims, which should include the claims forviolations of his privacy rights. See Thomas, 474 U.S. at 151(noting that a magistrate's determination becomes that of thedistrict court unless a party files a specific objectionthereto).

IV. Conclusion

For the aforementioned reasons, the Cornell Defendants'specific objection to the Report and Recommendation is overruled.Plaintiff's Amended Complaint relates back to the date that hisoriginal Complaint was filed and accordingly the claims assertedtherein against the Cornell Defendants are not barred by thestatute of limitations. However, this Court grants the CornellDefendants' motion to dismiss the remaining Bivens claims forfailure to state claims upon which relief can be granted becausethe Cornell Defendants are not federal agents and special factorscounsel this Court to deny the implication of a Bivens cause ofaction against any Defendant in this case.

Since Plaintiff did not object to Judge Martin's recommendationthat this Court also grant the Cornell Defendants' motion todismiss Plaintiff's claims under 42 U.S.C. §§ 1981 and 1983, thatmotion is hereby granted. Plaintiff's constitutional claims forviolations of his privacy rights should have been pled under42 U.S.C. ___ 1983 and therefore are included in the uncontestedrecommendation that those claims be dismissed as well. Likewise,neither party objected to Judge Martin's recommendation todismiss all claims against Salisbury, Singleton, Johnson, and theWyatt Facility and, therefore, the motion to dismiss those claimsis also granted.

Plaintiff's journey on this long and twisted road has come toan end. The Clerk shall enter judgment for all Defendants on theAmended Complaint, forthwith.

It is so ordered.

1. This Court takes judicial notice of the facts used todescribe the Wyatt Facility and the Central Falls DetentionFacility Corporation. All of these facts were found in publicdocuments including Rhode Island General Laws §§ 45-54-1,45-54-2(b), 45-54-5, 45-54-6, 45-54-8(d); and Reports andRecommendations issued by Magistrate Judge Jacob Hagopian, whichare available at, Sarro v. Donald W. Wyatt Det. Facility, No.00-011T, 2001 WL 210265, at *3-4 (D.R.I. Jan. 30, 2001); Lawsonv. Liburdi, 114 F. Supp. 2d 31, 33-34 (D.R.I. 2000). SeeWaterson v. Page, 987 F.2d 1, 3-4 (1st Cir. 1993) (citationsomitted) (noting that on a motion to dismiss, a court may lookbeyond the complaint to matters of public record and in doing sodoes not convert a Rule 12(b)(6) motion into a motion for summaryjudgment).

2. In 2000, Cornell Corrections, Inc. changed its name toCornell Companies, Inc. and created Cornell Corrections of RhodeIsland Cornell Corrections of Rhode Island is a subsidiary ofCornell Companies, Inc. and employs the individuals who currentlywork at the Wyatt Facility.

3. 28 U.S.C. § 1331 (1980) states that "the district courtsshall have original jurisdiction of all civil actions arisingunder the Constitution, laws, or treaties of the United States."

4. 28 U.S.C. § 1343(a)(3)(1979) provides the district courtswith original jurisdiction over civil actions authorized by lawto be commenced by any person to "redress the deprivation, undercolor of any State law, statute, ordinance, regulation, custom,or usage, of any right, privilege, or immunity secured by theConstitution of the United States or by any Act of Congressproviding for equal rights of citizens or of all persons withinthe jurisdiction of the United States."

5. Plaintiff's Amended Complaint does not allege any state lawtort claims.

6. Plaintiff argues that the Cornell Defendants' objection tothe Report and Recommendation is untimely because the CornellDefendants received the Report and Recommendation on January 18,2001, and filed their objection on January 29, 2001, one dayafter the ten day limit expired. See Objections of Pl., GlennP. LaCedra to Defs.' Objections to Report & Recommendation ofJan. 16, 2001, at 1-2. However, since January 28, 2001, was aSunday and the Court was closed, this Court concludes that it wassufficient and timely for the Cornell Defendants to file theirobjection the next day. See Fed.R. Civ. P. 6(a) (West 2004)(noting that when the last day of any period of time prescribedby the Federal or Local Rules, court order, or applicable statutefalls on a Saturday, Sunday, or legal holiday, the period forfiling shall run until the end of the next day that the court isopen).

7. Judge Martin concluded that Rhode Island's three yearstatute of limitations for personal injury actions applied toPlaintiff's claims under Bivens and 42 U.S.C. §§ 1981 and 1983,and that this limitations period was not tolled while Plaintiffwas incarcerated. Report & Recommendation, at 6-9. This Courtagrees and also notes that neither party objected to theseconclusions.

8. Rule 15(c)(3) was amended in 1991 to change the result inSchiavone v. Fortune, with respect to the problem of a misnameddefendant. 6A Wright, et al., supra, § 1498, at 22. Whilenotice remains the critical factor in a Rule 15(c)(3)determination, this notice no longer has to occur within theapplicable statute of limitations period. See Fed.R. Civ. P.15(c)(3) advisory committee's note to 1991 Amendments. Seealso, Pineda, 982 F. Supp. at 97(noting that notice, notservice, is the determining factor in a Rule 15(c) analysis).

9. The Cornell Defendants have not argued that their additionto this lawsuit causes them the prejudice of being deprived of astatute of limitations defense. In any event, such an argument isirrelevant because every party named under Rule 15(c) after thelimitations period expires suffers from that same prejudice.Felix v. N.Y. City Police Dep't., 811 F. Supp. 124, 128(S.D.N.Y. 1992). Instead, the relevant inquiry is whether theCornell Defendants received sufficient notice so that theirdefense on the merits will not be prejudiced. See, id.

10. Judge Martin noted that Plaintiff signed his originalComplaint on August 16, 1999, and that it was received by theDistrict Court in Massachusetts on August 18, 1999. Report &Recommendation, at 9, n. 6. He treated the Amended Complaint ashaving been filed on July 25, 2000, the date that Plaintiff filedhis "Renewed Motion to Take Leave in Order to Amend Plaintiff'sComplaint." Id., at n. 7.

11. 42 U.S.C. § 1981 was enacted as Section 1 of the CivilRights Act of 1866, 14 Stat. 27. Bell v. City of Milwaukee,746 F.2d 1205, 1232 (7th Cir. 1984).

12. 42 U.S.C. § 1983 provides: Every person who, under 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.

13. The fact that Plaintiff was placed at the Wyatt Facilityby the U.S. Marshal for the District of Massachusetts (under anarrangement with the Cornell Defendants) does not change thisundeniable fact. At times the U.S. Marshal for Rhode Islandplaces federal detainees at the Rhode Island state prison (theAdult Correctional Institutions or "ACI"), particularly femaledetainees, but that does not convert the correctional officers atthe ACI into federal officers acting under color federalauthority.

14. The fact that Plaintiff failed to file a timely objectionto Judge Martin's conclusions that his § 1983 claims againstSalisbury, Singleton, and Johnson were barred by the statute oflimitations and that his same claim against the CornellDefendants should be dismissed for failure to state a claim onwhich relief could be granted does not change this Court'sopinion that the availability of a remedy under § 1983precludes this court from finding a parallel remedy underBivens. See Ward v. Caulk, 650 F.2d 1144, 1148 (9th Cir.1981) (emphasis added) (concluding that the availability of astatutory remedy under § 1983 precluded an action under thefederal constitution even though the plaintiff's failure tocomply with the statute of limitations prevented him frombringing the § 1983 claim); Small v. Inhabitants of the City ofBelfast, 547 F. Supp. 761, 769 (D.Me. 1982) (citing Ward,650 F.2d at 1148) (noting that although the § 1983 action was timebarred, there was no Bivens cause of action because the § 1983claim was available during the limitations period)). See alsoColon Berrios v. Hernandez Agosto, 716 F.2d 85, 89 (1st Cir.1983) (concluding that the Supreme Court has not held that aderivative action under the Constitution may be created to avoidthe limitations of a § 1983 action when such an action wasavailable).

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