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Perfetto v. Does

United States District Court, D. New Hampshire

May 20, 2015

Jonathan Andrew Perfetto
v.
Jane Does et al.[1]

REPORT AND RECOMMENDATION

ANDREA K. JOHNSTONE, Magistrate Judge.

Jonathan Perfetto, who is presently an inmate at the New Hampshire State Prison, has filed a complaint (doc. no. 1) pursuant to 42 U.S.C. § 1983, alleging that the defendants violated his constitutional rights, when Perfetto was incarcerated at the Hillsborough County House of Corrections ("HCHC") from November 16, 2009, until November 14, 2010, and again from January 4, 2011, until December 19, 2011. The matter is before the court for preliminary review to determine, among other things, whether the complaint states any claim upon which relief could be granted. See 28 U.S.C. § 1915A(a); United States District Court District of New Hampshire Local Rule ("LR") 4.3(d)(1).

Procedural History

I. Perfetto I

The complaint (doc. no. 1) in this matter is substantially similar (but not identical) to a previous complaint Perfetto filed in another case in this court, Perfetto v. Alexis, Civil No. 12-cv-393-JL ("Perfetto I"). In that case, the magistrate judge issued a report and recommendation, see Perfetto I, doc. no. 11, recommending that all but two of the claims in the complaint be dismissed, and issued an order, see id., doc. no. 12, serving claims alleging excessive force and a violation of Perfetto's rights under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc-1(a), et seq. ("RLUIPA").[2] Before the district judge acted on the report and recommendation, however, Perfetto filed a motion to voluntarily dismiss his complaint, see Perfetto I, doc. no. 31, without prejudice, which was granted, see id., doc. no. 37. Judgment was entered, see id., doc. no. 38, and the case was closed, on

II. Perfetto II

On December 15, 2014, Perfetto filed the complaint (doc. no. 1) in this action ("Perfetto II"), in which he reasserted the claims raised in Perfetto I, all of which are alleged to have occurred between November 16, 2009, and December 19, 2011. This action was brought within one year of the date Perfetto I was dismissed without prejudice.

Standard for Preliminary Review

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 facially plausible 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)).

Discussion

I. Claims Recommended for Dismissal in Perfetto I

Perfetto's instant complaint sets forth fifteen claims for relief. For the reasons set forth in the report and recommendation issued on May 21, 2013, in Perfetto I, the court recommends that the following claims in the instant complaint be dismissed for failure to state a claim, as they are repetitive of the claims that the court, in Perfetto I, found should be dismissed. Specifically, Perfetto asserts that defendants violated his constitutional rights by:

• failing to track indigent mail ...

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