Rotondo v. Salisbury et al

1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
__________________________________________
)
GINO ROTONDO, Sr. 	)
Plaintiff, 	)
)
v. 	) 	No. 1:23-CV-00458-MSM-LDA
)
WAYNE SALISBURY, 	)
Defendant. 	)
__________________________________________)
ORDER
Mary S. McElroy, United States District Judge.
Mr. Rotondo, an incarcerated prisoner, has brought an action pursuant to 42
U.S.C. § 1983, claiming civil rights violations committed by various officials and staff
of the Rhode Island Department of Corrections. 	The Complaint was filed on
November 3, 2023, and permission to proceed
in forma pauperis was granted one
month later. In the short time period since then, Mr. Rotondo has filed “supplements”
to his Complaint (ECF No. 4), a Motion to Amend (ECF No. 6), a Motion for
Temporary Restraining Order and Preliminary Injunction (ECF No. 9), a Motion to
Clarify (ECF No. 17), a Motion to Appoint Counsel (ECF No. 18), a Motion to
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“Supplement 	Pleading 	Under 	Rule 	15” 	(ECF 	No. 	36), 	a 	second 	Supplemental
Memorandum (ECF No. 39), and a Motion for Default Judgment (ECF No. 41).1
Service was accepted by the Rhode Island Attorney General on January 8 and
9, 2024, on behalf of those defendants still employed by the State (ECF Nos. 19, 21,
and 22), but was declined for three others not still so employed (ECF No. 20). As to
those three defendants who have not yet been served, the Clerk’s Office, on January
10, mailed to Mr. Rotondo copies of summonses and forms for him to complete so that
service could be accomplished. They have not yet been returned, so those defendants
remain unserved.
Mr. Rotondo’s Motion for Default Judgment is premature. The time for served
defendants to respond to his Complaint had not run when it was filed, and one cannot
default defendants who have yet to be served. 	In addition, during that time, Mr.
Rotondo has been filing other motions, which were responded to, and a variety of
missives to “supplement” his Complaint. The Motion for Default Judgment (ECF No.
41) is DENIED.
As to Mr. Rotondo’s various “supplements” and motions to amend, he is due
some “extra degree of solicitude” as a
pro se filer.
Adams v. Stephenson, No. 96-2266,
116 F.3d 464 (Table), 1997 WL 351633, at *1 (1st Cir. June 23, 1997). However, the
Court will not permit continued piecemeal additions and it is not realistic to expect a
1 He also prosecuted an appeal from the Court’s denial of his Motion for Hearing (ECF
No. 5) on December 5, 2023. 	The appeal was voluntarily dismissed on January 19,
2024.
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defendant to answer a Complaint that is a moving target because it is constantly
being revised. Therefore, the following are ORDERED:
1. 	The Complaint (ECF No. 1) plus documents filed as ECF Nos. 4, 6, 17, 36 and
39 are accepted in the aggregate as the operative Complaint, referred to in the
future as ECF No. 1. 	The Motions to Amend/Supplement (ECF No. 4, 6, 36,
39) are GRANTED.
2. 	No 	more 	“supplements” 	or 	“amendments” 	will 	be 	accepted 	except 	in
conformance with Fed. R. Civ. P. 15, which requires a formal Motion to Amend,
accompanied by a proposed Amended Complaint. 	To be clear, a “proposed
Amended Complaint” is a single document containing all the claims and
allegations 	in 	support 	within 	that 	single 	document. 	While 	the 	Court
understands the burden on a
pro se litigant of reproducing everything from the
original complaint into an amended one, a defendant is entitled to see a
plaintiff’s allegations in a single place.
3. 	The demand for jury trial made in the Motion to Clarify (ECF No. 17) is
construed as a demand under Fed. R. Civ. P. 38(b)(1).
4. 	The plaintiff is advised that Lincoln D. Almond is assigned as the Magistrate
Judge in this matter. 	Further, the Complaint checked off only boxes for
individual liability, not for official liability, as the basis for suit. The case is
considered as one brought under § 1983, notwithstanding the docket sheet’s
reference to a petition for habeas corpus. The other points raised in the Motion
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to Clarify are not cognizable in such a Motion, and the Motion to Clarify (ECF
No. 17) is therefore DENIED.
5. 	A response is due to the operative Complaint by all defendants who have
already been served, on or before March 8, 2024.
6. 	Any defendant who is served after the date of this Order must respond to the
Complaint on or before March 8, 2024, or 14 days from the date of service,
whichever is later.
7. 	The Motion to Appoint Counsel (ECF No. 18) is DENIED.
8. 	The Motion for Temporary Restraining Order and Preliminary Injunction
(ECF No. 9) is DENIED, as the plaintiff has not shown at this point a likelihood
of success on the merits.
DeNovellis v. Shalala, 135 F.3d 58, 62 (1st Cir. 1998)
(four criteria for injunctive relief).
IT IS SO ORDERED:
____________________________________
Mary S. McElroy,
United States District Judge
Date: January 29, 2024
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