United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
ANDREA K. JOHNSTONE, Magistrate Judge.
Jonathan Perfetto has filed a Complaint (doc. no. 1), pursuant to 42 U.S.C. § 1983, alleging violations of his rights under the Fourteenth Amendment and the Prison Rape Elimination Act of 2003, 42 U.S.C. § 15601 et seq. ("PREA"). The complaint is before the court for preliminary review pursuant to 28 U.S.C. § 1915A(a) and LR 4.3(d)(1).
In determining whether a pro se pleading states a claim, the court construes the pleading liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Disregarding any legal conclusions, the court considers whether the factual content in the pleading and inferences reasonably drawn therefrom, taken as true, state a claim to relief. Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Perfetto alleges that in September and October 2008, he was incarcerated at the Northern New Hampshire Correctional Facility ("NCF"). On September 2 and 3, 2008, Perfetto was sexually assaulted by his cellmate. Perfetto reported the sexual assault to prison officials.
On October 22, 2008, several days after reporting the sexual assault, Perfetto was released from prison, having served his maximum sentence. After his release, Perfetto met with and was interviewed by law enforcement officers concerning the sexual assault. The interviewing officers concluded that the alleged sexual assault was consensual, as Perfetto had admitted to being a sex addict during his interview with the officers.
On May 1, 2009, Perfetto was arrested and charged with making a false report of sexual assault against his cellmate. At the time he was charged, Perfetto was subject to the imposition of a suspended 14-28 year sentence. Perfetto entered into a negotiated plea agreement in which he pleaded nolo contendere to a misdemeanor false report and received a one year jail term, in exchange for which the prosecutor apparently agreed not to seek imposition of the suspended sentence at that time. Perfetto served twelve months in jail and was released.
I. PREA Violation
Perfetto alleges that defendants' actions violated his rights under PREA. PREA does not provide Perfetto with a private right of action. See Morissette v. Superintendent of MCI Cedar Junction, No. 14-10246-DJC, 2014 WL 3896722, *3 (D. Mass. Aug. 7, 2014) (PREA does not create a private right of action). Accordingly, Perfetto's claims based upon any violation of PREA should be dismissed.
II. False Arrest/Malicious Prosecution
Perfetto asserts that defendants violated his Fourteenth Amendment rights by charging him with, and then arresting and prosecuting him for, making a false report of sexual assault. Perfetto also states, however, that he entered a plea to that offense, which resulted in a conviction that does not appear to have been vacated or overturned. Perfetto cannot bring a § 1983 action for damages for his unlawful arrest, prosecution, or conviction, however, where, as here, a decision in his favor would "necessarily imply' the invalidity of his conviction.'" Skinner v. Switzer, 131 S.Ct. 1289, 1298 (2011) (quoting Heck v. Humphrey, 512 U.S. 477, 487 (1994)). Accordingly, Perfetto ...