Morey v. Rhode Island

• Decision Date: 03 March 2005
• Docket Number: No. 04-169L.,04-169L.
• Parties: Robert P. MOREY v. State of RHODE ISLAND.
• Court: U.S. District Court — District of Rhode Island

359 F.Supp.2d 71

Robert P. MOREY v. State of RHODE ISLAND.

No. 04-169L.

United States District Court, D. Rhode Island.

March 3, 2005.

Robert P. Morey, Warwick, RI, pro se.

Michael P. Jolin, Attorney General's Office, Providence, RI, for Defendant.

MEMORANDUM AND ORDER

LAGUEUX, Senior District Judge.

This Court cannot improve on the well-reasoned analysis contained in the attached Report and Recommendation issued by United States Magistrate Judge David L. Martin on January 31, 2005.

Therefore, the Court accepts and adopts the Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1).

Thus, the Defendant's motion to dismiss is granted and the Clerk will enter judgment for the Defendant forthwith.

It is so ordered.

MARTIN, United States Magistrate Judge.

REPORT AND RECOMMENDATION

Before the court is Defendant's Motion to Dismiss ("Motion to Dismiss" or the "Motion"). The State of Rhode Island (the "State" or "Defendant") seeks dismissal of the Complaint filed by Plaintiff Robert P. Morey ("Plaintiff") on grounds of lack of subject matter jurisdiction and failure to state a claim, see Fed.R.Civ.P. 12, as well as Eleventh Amendment immunity, see U.S. Const. amend. XI.

This matter has been referred to me for preliminary review, findings, and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and D.R.I. Local R. 32(a). A hearing was conducted on November 22, 2004. For the reasons stated below, I recommend that the Motion to Dismiss be granted.

Facts and Travel

Plaintiff was convicted on March 26, 1996, of eleven counts of second degree child molestation. See Complaint at 2; see also State v. Morey, 722 A.2d 1185, 1187 (R.I.1999). He was sentenced on June 26, 1996, to ten years to serve. See Complaint at 2. According to Plaintiff, no oral pronouncement was made by the sentencing judge regarding court costs or other penalties such as probation, suspended sentence, etc. See id. Fifteen days thereafter, a written judgment and commitment order was signed, which included a $4,400 assessment¹ as well as "several other `new' penalties...." Complaint at 2.

On August 28, 1997, Plaintiff was released on $30,000 bail with surety pending appeal, after $3,000 cash was deposited with the court in lieu of bail. See Complaint at 3. The Rhode Island Supreme Court denied Plaintiff's appeal in a written opinion dated January 8, 1999. See id.; see also State v. Morey, 722 A.2d 1185, 1191 (R.I.1999). In the interim, the Clerk of the Superior Court applied Plaintiff's $3,000 deposit in lieu of bail to his assessed court costs. See Complaint at 2; Memorandum in Support of Plaintiffs' [sic] `Proposed Amended Complaint' ("Plaintiff's Mem ."), Exhibit ("Ex.") A (Criminal Docket Sheet Report); Defendant's Memorandum in Support of Its Motion to Dismiss ("Defendant's Mem.") at 2.

Plaintiff's sentence was subsequently reduced to six years to serve by the sentencing judge after hearing on April 23, 1999. See Complaint at 3. Again, according to Plaintiff, no oral pronouncement regarding court costs or other penalties was made at the hearing, and a written order of judgment and commitment was entered six days thereafter. See id. Plaintiff recites that this new order "deleted any reference to costs at all. It also amended reference to probation by adding four years to the ten on th[e] record, which ... has just recently been corrected as an illegal sentence." Id.

Plaintiff on November 14, 2003, filed a Motion for Remission of Court Costs with the Clerk of the Superior Court. See id. After hearing on December 18, 2003, the motion was denied. See id. at 4. Plaintiff filed a petition for Writ of Certiorari with the Clerk of the Rhode Island Supreme Court on December 29, 2003, see Complaint at 4, which was denied on March 18, 2004, see id. On March 29, 2004, Plaintiff filed a Motion for Reconsideration of the petition. See id. An order denying reconsideration was entered on April 9, 2004. See id. Plaintiff also filed a Motion for a Ruling on the Issue of Oral Pronouncement, which was denied by the Superior Court and which denial has been appealed to the Rhode Island Supreme Court. See id.

Plaintiff filed a Complaint (Document # 1) in this court on May 7, 2004. He also filed a motion to proceed in forma pauperis (Document # 2), which was granted by this Magistrate Judge on May 24, 2004. See Order of 5/24/04 (Document # 3).

On August 4, 2004, Plaintiff filed a Motion for Judgement of Default (Document # 5) ("First Motion for Default"), which the court treated as a motion for entry of default. Defendant filed an Objection to Motion for Default Judgment (Document # 8) ("Objection to Default") on August 24, 2004. Plaintiff subsequently filed a document entitled Plaintiffs' [sic] Response to Defendants' [sic] Motion to Dismiss (Document # 10), referring to the Objection to Default. The court ordered the parties to file affidavits regarding service. See Order for Affidavits re Service (Document # 9) dated August 31, 2004. After receiving the affidavits, the court conducted a hearing on the Motion for Default on September 23, 2004. In a written order, the court thereafter directed that default be entered against Defendant on October 5, 2004, if no answer had been filed by the close of business on October 4, 2004. See Conditional Order for Entry of Default (Document # 15) ("Conditional Order") dated September 23, 2004.

Defendant filed the instant Motion to Dismiss (Document # 16) on September 29, 2004. Plaintiff subsequently filed a Motion for Reconsideration of Order (Document # 17) ("Motion for Reconsideration"), another Motion for Entry of Default (Document # 18) ("Second Motion for Default"), and a Motion for Stay of Proceedings to File an Amended or Supplemental Complaint (Document # 19) ("Motion for Stay"). A hearing on the Motion to Dismiss was scheduled for October 29, 2004. At that time Plaintiff made an oral request for a continuance, which the court granted in order to allow Plaintiff to file a written response to the Motion to Dismiss. Defendant requested permission to file a supplemental memorandum raising an additional defense, which request was also granted. Following the hearing, the court issued a written order denying the Motion for Reconsideration and Second Motion for Default. See Order Denying Motions for Entry of Default and for Reconsideration (Document # 22) dated October 29, 2004.

Defendant's Supplemental Memorandum in Support of Its Motion to Dismiss (Document # 23) ("Defendant's Supp. Mem.") was filed on November 4, 2004. Plaintiff on November 18, 2004, filed Petitioners' [sic] Objection and Answer to Defendants [sic] Motion to Dismiss (Document # 25) ("Plaintiff's Obj."), along with Plaintiffs' [sic] Motion for Submission of Supplemental Argument for Amendment to Petition (Document # 24) ("Motion to Supplement").

A hearing on the Motion to Dismiss, the Motion to Stay, and the Motion to Supplement was conducted on November 22, 2004. The court granted the Motion to Supplement and directed Plaintiff to submit a proposed amended complaint by December 6, 2004. Defendant was given until December 16, 2004, to file a response to the proposed amended complaint if it so desired. Plaintiff on December 6, 2004, filed a Motion to a File a Proposed Amended Complaint (Document # 28) and supporting memorandum. Defendant notified the court by letter dated December 15, 2004, that it would not file any further response, but would rest on the papers it had previously filed. The matter was subsequently taken under advisement.²

Law

I. Pro Se Status

Plaintiff is proceeding pro se, and his Complaint is held to a less stringent standard than one drafted by a lawyer. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972). It is to be "read ... with an extra degree of solicitude." Rodi v. Ventetuolo, 941 F.2d 22, 23 (1st Cir.1991). The court is required to liberally construe a pro se complaint, see Strahan v. Coxe, 127 F.3d 155, 158 n. 1 (1st Cir.1997); Watson v. Caton, 984 F.2d 537, 539 (1st Cir.1993), and may grant a motion to dismiss "only if plaintiff cannot prove any set of facts entitling him to relief," Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir.1997). At the same time, a plaintiff's pro se status does not excuse him from complying with procedural rules. See Instituto de Educacion Universal Corp. v. U.S. Dep't of Educ., 209 F.3d 18, 24 n. 4 (1st Cir.2000). The court construes Plaintiff's Complaint liberally in deference to his pro se status.

II. 12(b)(1) Standard

In ruling on a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), a court must construe the complaint liberally, treat all well-pleaded facts as true, and indulge all reasonable inferences in favor of the plaintiff. See Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir.1996); Murphy v. United States, 45 F.3d 520, 522 (1st Cir.1995); see also Pejepscot Indus. Park, Inc. v. Maine Cent. R.R. Co., 215 F.3d 195, 197 (1st Cir.2000). "However, in ruling on a Rule 12(b)(1) motion, a court is not limited to the face of the pleadings. A court may consider any evidence it deems necessary to settle the jurisdictional question." Palazzolo v. Ruggiano, 993 F.Supp. 45, 46 (D.R.I.1998)(citing Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir.1996), 2 James Wm. Moore et al., Moore's Federal Practice ¶ 12.30[3] (3d ed.1997)). It is Plaintiff's burden to prove the existence of subject matter jurisdiction. See Murphy v. United States, 45 F.3d at 522; see also Palazzolo v. Ruggiano, 993 F.Supp. at 46 ("Once a defendant challenges a court's subject matter jurisdiction, the plaintiff has the burden of establishing that jurisdiction exists.")(citing Bank One, Texas, N.A. v. Montle, 964 F.2d 48, 50 (1st Cir.1992)).

III. 12(b)(6) Standard

In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court construes the complaint in the light most favorable to the plaintiff, see Paradis v. Aetna Cas. &...