CORRENTE v. STATE OF R.I., DEPT. OF CORRECTIONS Civ. A. No. 90-0524-L.
759 F.Supp. 73 (1991)
Michael CORRENTE and Richard Alan Burke v. STATE OF RHODE ISLAND, DEPARTMENT OF CORRECTIONS, Bruce D. Sundlun, Governor, Sued in his Official Capacity, George Vose, Director of the Department of Corrections, Sued in his Official Capacity, Rhode Island Brotherhood of Correctional Officers, John Sabalewski, President, Sued in his Official and Personal Capacity, John Doe, Secretary, Sued in his Official Capacity, and Alan Silverman, Treasurer, Sued in his Official Capacity, William Bovi, First Vice President, Arthur Mardox, Second Vice President, Captain Charles Dede, Captain Julio Costa, Lieutenant Kenneth Rivard, Lieutenant Alan Reedy, Lieutenant Richard Boudreau, and Deputy Ronald Detonnancourt.
United States District Court, D. Rhode Island.
March 21, 1991.
Arlene Violet, Barrington, R.I., for plaintiffs.
Dorothy Fobert, Atty. General's Dept., Providence, R.I., Gerard Cobleigh, Warwick, R.I., George Cappello, Dept. of Corrections, Cranston, R.I., for defendants.
MEMORANDUM AND ORDER
LAGUEUX, District Judge.
Plaintiffs Michael Corrente and Richard Alan Burke are correctional officers at the Rhode Island Adult Correctional Institutions ("ACI"). They allege that in November
There are two groups of defendants: the State defendants and the Brotherhood defendants. The State defendants are the Governor of Rhode Island and the Director of the State Department of Corrections, both sued in their official capacity.
Plaintiffs filed suit under 42 U.S.C. Section 1983 claiming that defendants punished them for exercising their first amendment rights, and thus violated their civil rights. Plaintiffs also claim that defendants conspired to interfere with their civil rights in violation of 42 U.S.C. Section 1985.
All defendants moved to dismiss the Section 1983 and 1985 claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The 12(b)(6) motions to dismiss for failure to state a claim under Section 1983 are granted with respect to the Governor and the following Brotherhood defendants: John Sabalewski, President; John Doe, Secretary; Alan Silverman, Treasurer; William Bovi, First Vice President; and Captain Julio Costa. Plaintiffs have stated a claim under Section 1983 with respect to the remaining defendants, and their 12(b)(6) motions to dismiss are denied. Each defendant's motion to dismiss the Section 1985 claim is granted.
When passing on motions to dismiss under Rule 12(b)(6), this Court must accept the facts alleged in the complaint as true and construe those facts in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Knight v. Mills, 836 F.2d 659, 664 (1st Cir.1987). Furthermore, it is well-established that a Rule 12(b)(6) motion should not be granted "unless it appears beyond 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, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). This liberal standard is mandated to effectuate the purposes of Rule 8(a) of the Federal Rules of Civil Procedure which requires in part only a "short and plain statement of the claim showing that the pleader is entitled to relief."
The standard for determining whether a complaint satisfactorily pleads a
Dewey, 694 F.2d at 3.
See also Culebras Enters. Corp. v. Rivera Rios, 813 F.2d 506, 518-19 (1st Cir.1987) ("This court has not looked with favor on complaints which, trading on mere conclusory charges, fail to set out the specifics of a tenable claim.").
A. The Section 1983 Claim
Section 1983 provides:
In order to make out a Section 1983 claim the entity responsible for the alleged deprivation of civil rights must be a "person" within the terms of the statute. In addition, two fundamental allegations must be pleaded in conformity with the Dewey standard. First, the person must have allegedly acted under color of state law. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981). Second, the person's action must have allegedly deprived another of rights, privileges, or immunities secured by the federal Constitution or federal laws. Id.
1. State Defendants
In Will v. Michigan Department of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989), the Supreme Court held that "neither a State nor its officials acting in their official capacities are `persons' under § 1983." This statement seemingly compels one conclusion regarding the sufficiency of the Section 1983 claim alleged against the two State defendants: the plaintiffs have failed to state a claim upon which relief can be granted because the Governor and the Director are not "persons" under Section 1983. However, the Supreme Court's construction of "person" in Will is more elaborate than the quoted phrase above indicates. In a footnote, the Court stated that "Of course a State official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because `official-capacity actions for prospective relief are not treated as actions against the State.'" Will, 491 U.S. at 71 n. 10, 109 S.Ct. at 2311 n. 10 (quoting Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 3106 n. 14, 87 L.Ed.2d 114 (1985)).
In this case, plaintiffs seek both compensatory and prospective injunctive relief from the state officials. Will bars the claim for compensatory relief; it does not affect the claim for injunctive relief. In addition, plaintiffs' claim for injunctive relief from the state officials is not barred by the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 3106, n. 14, 87 L.Ed.2d 114 (quoted above in Will); Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) (suit challenging the constitutionality of a state official's action is not one against the state).
Plaintiffs allege nineteen incidents of harassment or threats. Defendant Governor is implicated in two of these incidents as follows:
These allegations fall far short of the particularity mark required in Section 1983 cases. Plaintiffs' assertion that the Governor knew of and acquiesced in the harassment is purely conclusory. The Third Circuit reached a similar result in Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir.1988). In Rode, a state employee sued a bevy of defendants alleging retaliatory harassment in response to her exercise of first amendment rights. In affirming the District Court's granting of the motion to dismiss of the Governor and Attorney General, the Third Circuit stated:
Rode, 845 F.2d at 1207.
Although Rhode Island is not a large state, the particularity requirement serves the same purpose here. Plaintiffs simply have not shown that defendant Governor knew of the hanging of the cartoon or of the other alleged incidents of harassment. Plaintiffs merely allege "all the aforesaid" was reported to the Governor, failing to state exactly what was reported to him and, more importantly, that he actually knew of the harassment. Because such conclusory allegations are insufficient to state a claim under Section 1983, the Governor's motion to dismiss must be granted.
Defendant Director is implicated in eight incidents of harassment. They are:
Although plaintiffs' complaint is no model of clarity, it does set out a minimal factual setting which alleges defendant Director knew of and acquiesced in the alleged harassment. The First Circuit has recognized that a supervisor may be liable for deliberate indifference to constitutional violations inflicted on others by those in his charge.
Plaintiffs' allegations concerning the Director's actions and inactions satisfy Dewey's particularity requirement and the three elements of supervisory liability set out in Gutierrez-Rodriguez. First, plaintiffs' allege that the Director not only knew of the harassment, but failed to act to cure incidents of harassment when he had an obligation to do so. For example, the Director may be held accountable for his own inactions following the two shakedown incidents alleged in paragraphs 6(d) and 6(e) of plaintiffs' complaint. Second, given the Director's knowledge of the plaintiffs' implication of fellow officers for assaulting an inmate, the alleged failure of the Director to act could be considered deliberate, reckless or callous. Finally, plaintiffs' allegations are sufficient to establish an affirmative link between the harassment and the instances of inaction by the Director.
Plaintiffs' complaint alleges with particularity minimum facts sufficient to withstand dismissal of the claim that defendant Director violated Section 1983. In short, the plaintiffs may be able to prove facts at trial pursuant to these allegations which will subject the Director to prospective injunctive sanctions.
2. Brotherhood Defendants
As a preliminary matter, the Brotherhood defendants contend that the Brotherhood itself is not properly before the Court because plaintiffs did not comply with the service provisions for unincorporated associations outlined in Rhode Island General Laws Section 9-2-12. Defendants also allege that Rhode Island law precludes an action against the individual Brotherhood members pending the outcome of the action against the Brotherhood and its officers. R.I.Gen.Laws § 9-2-15.
It is clear that an "unincorporated party is not a proper party in a law suit under the law of Rhode Island." Walsh v. Israel Couture Post, No. 2274, 542 A.2d 1094, 1095 n. 1 (1988). A plaintiff must sue either all the individual members of the association or comply with Rhode Island General Laws Sections 9-2-10 through 9-2-15, which authorize service on the officers of an unincorporated association. Oskoian v. Canuel, 269 F.2d 311 (1st Cir.1959).
Despite this well-settled law, all the Brotherhood defendants are properly before this Court. Rule 17(b) of the Federal Rules of Civil Procedure states:
Because this provision authorizes suit against the Brotherhood itself, Rhode Island law can not bar plaintiffs' suit against individual members.
All the Brotherhood defendants are "persons" within the meaning of Section 1983. The Court's focus here will be on whether plaintiffs have satisfactorily alleged that each Brotherhood defendant acted
One need not be an officer of the state to act "under color" of state law. United States v. Price, 383 U.S. 787, 793, 86 S.Ct. 1152, 1156, 16 L.Ed.2d 267 (1966). Conversely, a person who is an officer of the state does not necessarily act "under color" of law merely by acting. See generally S. Nahmod, Civil Rights and Civil Liberties Litigation § 2.08 (2d ed. 1986) (discussing the issue of when a state employee becomes a private citizen for state action purposes).
The question here is whether plaintiffs have alleged that the private Brotherhood defendants "acted together with or obtained significant aid from state officials" and whether this conduct is "chargeable to the State." Lugar v. Edmondson Oil Co., 457 U.S. 922, 936, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982). See Kermit Constr. Corp. v. Banco Credito Y Ahorro Ponceno, 547 F.2d 1, 3 (1st Cir.1976). Construing the facts in the light most favorable to the plaintiffs, the complaint alleges that the Brotherhood defendants were acting under color of state law.
In order to withstand a motion to dismiss, plaintiffs next must have alleged with particularity that the Brotherhood defendants deprived them of rights, privileges, or immunities secured by the Constitution or laws of the United States.
Plaintiffs' complaint alleges that the Brotherhood itself is liable for any harassment or threats orchestrated by Brotherhood members. In addition, the complaint contains seven paragraphs which attempt to directly implicate the Brotherhood.
These paragraphs do set out minimal facts sufficient to sustain a Section 1983 claim against the Brotherhood. The complaint succeeds in setting out what the Brotherhood through its officers, agents and employees allegedly did to the plaintiffs and why. Plaintiffs' factual setting avers that the Brotherhood not only knew of the alleged harassment, but actively promoted it by several methods.
Furthermore, four paragraphs of the plaintiffs complaint allege a minimal factual setting sufficient to state a claim against six individual Brotherhood members. Defendants Mardox, Dede, Rivard, Reedy, Boudreau, and Detonnancourt are implicated by the following allegations:
These paragraphs provide a sufficient factual basis for the Section 1983 claim. The facts upon which plaintiffs base their action are clear, and that is all Dewey requires. Because plaintiffs' complaint states a cause of action against these six defendants, their motions to dismiss must be denied.
Plaintiffs' complaint does not make a single allegation against defendant Sabalewski, defendant Silverman, defendant Doe, defendant Bovi, nor defendant Costa. Needless to say, Dewey's particularity requirement imposes the burden on plaintiffs to at least set out what these defendants allegedly did. In short, plaintiff has ignored a critical aspect of Dewey's admonition that the complaint set out who did what to whom and why. The "what" is completely absent from plaintiff's complaint. The motions to dismiss for failure
B. The Section 1985 Claim
Section 1985 has three subsections which proscribe five types of conspiracies. Plaintiffs fail to specify which provision of Section 1985 defendants have allegedly violated. However, it is clear that plaintiffs' allegations are insufficient to make out a claim under any of the five classes of prohibited conspiracies.
The second part of Section 1985(2)
In addition, with respect to the first part of Section 1985(3), the Supreme Court has required an allegation that the conspiracy be motivated by a "racial, or otherwise class-based, invidiously discriminatory animus." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). This requirement has been extended by the Circuit Courts of Appeals to apply to the second part of Section 1985(2). See e.g. Harrison v. Springdale Water & Sewer Comm'n, 780 F.2d 1422, 1429 (8th Cir.1986) (collecting cases). No such allegation is contained in plaintiffs' complaint.
The three other brands of Section 1985 conspiracy "relate to institutions and processes of the Federal Government — federal officers, § 1985(1); federal judicial proceedings, the first portion of § 1985(2); and federal elections, the second part of § 1985(3)." Kush, 460 U.S. at 724, 103 S.Ct. at 1487. Quite obviously, plaintiffs' allegations do not invoke Section 1985(1)
Plaintiffs' complaint fails to state a claim under Section 1983 against the following defendants: the Governor, Sabalewski, Doe, Silverman, Bovi, and Costa. Therefore, the 12(b)(6) motion to dismiss of those defendants is granted. Plaintiffs complaint does state a cause of action under Section 1983 against all other defendants: the Director, the Brotherhood, Mardox, Dede, Rivard, Reedy, Boudreau, and Detonnancourt. Therefore, the 12(b)(6) motion to dismiss of those defendants is denied. Plaintiffs complaint fails to state a claim under Section 1985 against any defendant; thus every defendant's 12(b)(6) motion to dismiss that claim is granted.
It is so Ordered.
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