WINSTON v. DZIOBEK

2004 | Cited 0 times | D. Rhode Island | June 8, 2004

REPORT AND RECOMMENDATION

Confined at the Adult Correctional Institutions in Cranston,Rhode Island, plaintiff John F. Winston filed a Complaintallegedly pursuant to 42 U.S.C. § 1983. Plaintiff names as adefendants Linda Dziobek and an individual he identifies as"Lessie," both of whom are employees at Travelers Aid, anon-profit agency located in Providence, Rhode Island thatprovides services to homeless individuals and families.

According to the Complaint, Ms. Dziobek gave a picture ofWinston to the Providence Police Department without Winston'spermission. See Complaint at 3. Winston next avers that Lessiegave Winston's picture to Winston's lawyer. Id. Finally,Winston alleges that Ms. Dziobek gave Winston's possessions to anErnent Trahan. Id. Based upon these three allegations,plaintiff seeks "1,2500,00" [sic] from Ms. Dziobek for his "painand suffering" and "45 grand" from Lessie. Id. Winston alsoseeks to enjoin Ms. Dziobek and Lessie from working at TravelersAid. Id.

Section 1915A of Title 28 of the United States Code directs theCourt to review prisoner complaints before docketing or soonthereafter to identify cognizable claims or dismiss the Complaint if it fails to state a claim upon which relief can begranted. 28 U.S.C. § 1915A; See also 28 U.S.C. § 1915(e)(2).Pursuant to this directive, this Court finds that the instantcomplaint fails to state a claim upon which relief can be grantedfor the following reasons: (1) Title 42, Section 1983 of the United States Code provides a vehicle to bring claims against persons acting under the color of state law. 42 U.S.C. § 1983; See, e.g., Polk County v. Dodson, 454 U.S. 312, 317-18 (1981). Here, plaintiff asserts claims against private individuals. Thus, his Section 1983 claims against Ms. Dziobek and Lessie should fail. (2) To the extent plaintiff may be attempting to invoke the diversity jurisdiction of this Court to set forth a claim of state tort law, plaintiff's Complaint should still be dismissed. Diversity jurisdiction requires, inter alia, that the parties be residents of different states. See 28 U.S.C. § 1332. From all indications, plaintiff and both of the defendants are residents of Rhode Island

Accordingly, for the reasons set forth above, I recommend thatplaintiff's Complaint be dismissed for a failure to state a claimupon which relief can be granted. Any objection to this reportand recommendation must be specific and must be filed with theClerk of Court within ten days of its receipt. Fed.R.Civ.P.72(b). Failure to file timely, specific objection to this reportconstitutes waiver of both the right to review by the districtcourt 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).

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