Cody-Allen Zab v. Rhode Island Department of Corrections Jose R. Rivera v. State of Rhode Island Department of Corrections, by and through its Director, Patricia Coyne-Fague, in her official capacity

March 2, 2022

Supreme Court

(Dissent begins on Page 18)

Cody-Allen Zab :

v. : No. 2019-459-Appeal.
(PM 17-4195)
Rhode Island Department of :
Corrections et al.

Jose R. Rivera :

v. : No. 2019-462-Appeal.
(PC 17-433)
State of Rhode Island Department of :
Corrections, by and through its
Director, Patricia Coyne-Fague, in
her official capacity.

NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone 222-3258 or Email
opinionanalyst@courts.ri.gov of any typographical or
other formal errors in order that corrections may be made
before the opinion is published.
 Supreme Court

(Dissent begins on Page 18)

Cody-Allen Zab :

v. : No. 2019-459-Appeal.
(PM 17-4195)
Rhode Island Department of :
Corrections et al.

Jose R. Rivera :

v. : No. 2019-462-Appeal.
(PC 17-433)
State of Rhode Island Department of :
Corrections, by and through its
Director, Patricia Coyne-Fague, in
her official capacity.

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Justice Lynch Prata, for the Court. In these consolidated appeals, the

plaintiffs, Cody-Allen Zab (Zab) and Jose R. Rivera (Rivera) (collectively

plaintiffs), appeal from Superior Court judgments entered in favor of the defendants,

the Rhode Island Department of Corrections (DOC), Director Patricia Coyne-Fague

in her official capacity (DOC Director), and Global Tel*Link Corporation (Global)

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(collectively defendants).1 Before this Court, the plaintiffs argue that the trial court

erred in finding that it did not have jurisdiction to hear the plaintiffs’ claims based

on G.L. 1956 § 13-6-1, Rhode Island’s civil death statute (the civil death statute).2

For the reasons stated herein, we have determined that the entirety of the civil death

statute is unconstitutional and in clear contravention of the provisions of article 1,

section 5 of the Rhode Island Constitution. 3

1
Global and Director Patricia Coyne-Fague, in her official capacity, were named
defendants only in the Zab action. In the Superior Court, Global joined in the DOC’s
motions. Likewise, before this Court, Global moved to join in the DOC’s brief; we
granted Global’s motion on September 13, 2021. For sake of clarity, at times
throughout this opinion we refer to the defendants collectively, with the
understanding that the only named defendant in the Rivera matter is the DOC.
2
General Laws 1956 § 13-6-1 provides:

“Every person imprisoned in the adult correctional
institutions for life shall, with respect to all rights of
property, to the bond of matrimony and to all civil rights
and relations of any nature whatsoever, be deemed to be
dead in all respects, as if his or her natural death had taken
place at the time of conviction. However, the bond of
matrimony shall not be dissolved, nor shall the rights to
property or other rights of the husband or wife of the
imprisoned person be terminated or impaired, except on
the entry of a lawfully obtained decree for divorce.”
3
We thank the American Civil Liberties Union of Rhode Island for submission of
its thoughtful brief as amicus curiae.

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 Facts and Travel

It is undisputed that plaintiffs are serving sentences of life imprisonment at

the Adult Correctional Institutions. Zab pled guilty to one count of first-degree

murder and arson charges; on April 9, 2008, he was sentenced to life imprisonment.

Zab v. Zab, 203 A.3d 1175, 1175 (R.I. 2019) (mem.).4 Rivera was convicted of

sexually assaulting three developmentally disabled women and was sentenced to life

imprisonment, plus sixteen years. State v. Rivera, 987 A.2d 887, 893, 897 (R.I.

2010). 5

The plaintiffs assert that while imprisoned at the ACI they incurred injuries

due to defendants’ negligence. Specifically, Zab alleges that his arm was severely

burned and permanently disfigured when he made contact with an exposed hot water

pipe at the ACI. The pipe was located adjacent to telephones used by inmates, and

Zab alleges that defendants knew about the hazard but failed to mitigate the danger

it posed. Zab filed suit against defendants in the Superior Court, asserting a federal

claim under 42 U.S.C. § 1983 for violation of his constitutional rights, as well as a

4
Zab “set fire to the home of a ninety-five-year-old man in an attempt to recoup a
drug debt; the man, who died as a result of the fire, was not [Zab’s] intended victim.”
Zab v. Zab, 203 A.3d 1175, 1175 (R.I. 2019) (mem.).
5
Rivera appealed his conviction to this Court, and we affirmed the judgment of the
Superior Court. State v. Rivera, 987 A.2d 887, 892 (R.I. 2010). Rivera later appealed
from the trial justice’s denial of a motion to reduce sentence; the trial justice’s
decision was affirmed by this Court. State v. Rivera, 64 A.3d 742, 743 (R.I. 2013).

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state law claim for negligence. Rivera alleges that he suffered a broken ankle when

he was ordered by DOC employees to walk across an icy walkway at the ACI and,

as a result of the icy and untreated conditions, he slipped and fell. Rivera filed suit

against the DOC in the Superior Court, asserting only a state law claim for

negligence.

Zab and defendants filed cross-motions for summary judgment, and the DOC

filed a motion for judgment on the pleadings in the Rivera action. Arguments and

consideration of the motions for summary judgment and the motion for judgment on

the pleadings were consolidated in the Superior Court. The issue before the hearing

justice was whether plaintiffs’ negligence claims were barred by the civil death

statute, which provides that “[e]very person imprisoned in the adult correctional

institutions for life shall, with respect to all rights of property, to the bond of

matrimony and to all civil rights and relations of any nature whatsoever, be deemed

to be dead in all respects[.]” Section 13-6-1. In addition, and only as to the Zab case,

the hearing justice was faced with whether Zab could establish a § 1983 claim,

whether his request for injunctive relief was moot, and whether federal law provided

for monetary damages against defendants.

At the conclusion of oral arguments, the hearing justice issued a bench

decision, concluding that the civil death statute barred plaintiffs’ negligence claims.

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The hearing justice also ruled that Zab’s § 1983 federal claim failed as a matter of

law because Zab had not sued a person, as required by the statute.

On September 11, 2019, the hearing justice entered the following orders and

judgments: (1) an order in the Zab matter granting defendants’ motion for summary

judgment and denying Zab’s motion for summary judgment; (2) an order in the

Rivera matter granting the DOC’s motion for judgment on the pleadings, or

alternatively motion for summary judgment; and (3) judgments in both matters in

favor of defendants.6 The plaintiffs filed timely notices of appeal and we granted

the parties’ joint motion to consolidate the two appeals.

6
Although the DOC filed a motion for judgment on the pleadings in the Rivera case,
the hearing justice explicitly granted “[j]udgment on the [p]leadings, or alternatively
* * * [s]ummary [j]udgment * * *.” We have stated that “if, on a motion for
judgment on the pleadings, matters outside the pleadings are presented to and not
excluded by the court, the motion shall be treated as one for summary judgment[.]”
Ingram v. Mortgage Electronic Registration Systems, Inc., 94 A.3d 523, 527 (R.I.
2014) (brackets omitted) (quoting Super. R. Civ. P. 12(c)). Here, the hearing justice
took “judicial notice” that Rivera is serving a life sentence at the ACI and seemingly
relied on an affidavit submitted by the DOC with its motion for judgment on the
pleadings attesting that Rivera, on the date of the alleged slip and fall—and
continuing thereafter—“was an inmate at the [ACI] * * * serving a life sentence.”
The complaint did not aver that Rivera was serving a life sentence at the ACI.
Because matters outside the pleadings were necessarily considered by the
hearing justice, the motion for judgment on the pleadings was properly converted to
a motion for summary judgment. We are also satisfied that Rivera was not denied
notice or the opportunity to present additional material to the court because he did
not object to the affidavit or ask to present additional material of his own. See
Ingram, 94 A.3d at 527.

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 Standard of Review

“This Court reviews a decision granting a party’s motion for summary

judgment de novo.” Middle Creek Farm, LLC v. Portsmouth Water & Fire District,

252 A.3d 745, 750 (R.I. 2021) (quoting Boudreau v. Automatic Temperature

Controls, Inc., 212 A.3d 594, 598 (R.I. 2019)). We, like the hearing justice, “view

the evidence in the light most favorable to the nonmoving party, and if we conclude

that there are no genuine issues of material fact and that the moving party is entitled

to judgment as a matter of law, we will affirm the judgment.” Id. at 751 (quoting

Boudreau, 212 A.3d at 598).

Moreover, it is well settled that “[t]he judicial branch * * * is the ‘ultimate

interpreter of the Constitution.’” In re Advisory Opinion to the Governor, 732 A.2d

55, 69 (R.I. 1999) (quoting City of Pawtucket v. Sundlun, 662 A.2d 40, 58 (R.I.

1995)). Accordingly, “this Court is the only body authorized to finally determine

the constitutionality of a statute.” Id. (citing Sundlun, 662 A.2d at 58); see R.I.

Const., art. 10, § 2 (“The supreme court shall have final revisory and appellate

jurisdiction upon all questions of law and equity.”).

Discussion

On appeal, plaintiffs contend that the civil death statute is unconstitutional

because it violates their right to access the courts and seek a remedy for wrong done

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to them. In addition, Zab maintains that the civil death statute is unconstitutional

because it prevents him from asserting a § 1983 claim.

Zab’s § 1983 Claim

We first address Zab’s claim that the civil death statute violates the Supremacy

Clause of the United States Constitution, Article VI, clause 2, because it prevents

him from bringing a Superior Court action under § 1983. The Supremacy Clause

“preempts or invalidates state law that interferes or conflicts with any federal law.”

Verizon New England Inc. v. Rhode Island Public Utilities Commission, 822 A.2d

187, 192 (R.I. 2003). Accordingly, it has been recognized by the United States

Supreme Court that “state courts have inherent authority * * * to adjudicate claims

arising under the laws of the United States” and that state courts may not be divested

of jurisdiction except in narrowly defined circumstances. Haywood v. Drown, 556

U.S. 729, 735-36 (2009) (quoting Tafflin v. Levitt, 493 U.S. 455, 458 (1990)).

Although Zab contends that the civil death statute is unconstitutional because

it divests the Superior Court of jurisdiction to hear his § 1983 claim, it is clear to us

that the hearing justice dismissed the § 1983 claim on the merits and not based on

the authority of the court to proceed. In his complaint, Zab sought declaratory relief

finding that defendants violated the United States Constitution, injunctive relief

ordering defendants to remedy the burn hazard, costs, and “such further relief as this

[c]ourt deems fair and just.”

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 The hearing justice found that Zab’s § 1983 claim failed on the merits against

the DOC and the DOC Director because “the State is not a person,” and Zab “has no

right of action * * * unless he is suing a person.” This Court has recognized that

“neither a State nor its officials acting in their official capacities are ‘persons’ under

§ 1983.” Pontbriand v. Sundlun, 699 A.2d 856, 868 (R.I. 1997) (quoting Will v.

Michigan Department of State Police, 491 U.S. 58, 71 (1989)). Because Zab sued

the DOC and the DOC Director in her official capacity, that portion of his complaint

based upon § 1983 was properly denied by summary judgment. See Mills v. State

Department of Mental Health Board of Medical Licensure and Discipline, 863 A.2d

202, 202, 203 (R.I. 2004) (mem.) (recognizing that a “plaintiff is precluded from

bringing civil rights actions against the state or its agencies”).7

7
The hearing justice also expressed his concern “with mootness in some of [Zab’s]
claims * * * if [the hearing justice] discovered the phones were moved and there
were warnings given.” The record reveals that an affidavit submitted with
defendants’ motion for summary judgment attested that the following steps had been
taken to remedy the risks presented by the hot pipe(s) near the inmate telephones:
(1) covering “with insulation all feeder pipes with which inmates may come into
contact”; (2) maintaining the covering and “replacing it after inmates pick at the
insulated covering”; (3) posting a memo “in all cell block bulletin boards informing
inmates that the heating system had been turned on for the winter so the steam pipes
could be hot” and advising them to “use caution and not touch any steam pipes”; and
(4) moving the inmate telephones to a new location farther away from the feeder
pipes. Zab did not contest that these steps were, in fact, taken. Thus, the record
before us reflects that there was no genuine issue of material fact as to whether Zab’s
claims were moot.

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 Plaintiffs’ Negligence Claims

We now turn to plaintiffs’ contentions that the civil death statute

unconstitutionally divested the Superior Court of authority to hear their negligence

claims. The plaintiffs contend that the civil death statute treads upon their

constitutional rights, including the right of access to the courts as guaranteed by

article 1, section 5 of the Rhode Island Constitution.

The plaintiffs carry the burden of persuading this Court that the civil death

statute “violates a specific provision of the state constitution or the United States

Constitution[.]” Moreau v. Flanders, 15 A.3d 565, 574 (R.I. 2011) (brackets

omitted) (quoting Mackie v. State, 936 A.2d 588, 595 (R.I. 2007)). It is well settled

that “[t]his Court approaches constitutional questions with great deliberation,

caution, and even reluctance[.]” Id. at 573. Accordingly, “[i]n reviewing the

constitutionality of statutes, ‘we begin with the principle that legislative enactments

of the General Assembly are presumed to be valid and constitutional.’” Id. (quoting

Newport Court Club Associates v. Town Council of Middletown, 800 A.2d 405, 409

(R.I. 2002)). We attach to the statute in question “every reasonable intendment in

favor of constitutionality” and will not “declare a statute void unless we find it to be

constitutionally defective beyond a reasonable doubt.” Id. at 573, 574.

This Court has interpreted the plain and unambiguous language of the civil

death statute as declaring “that a person * * * who is serving a life sentence, is

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deemed civilly dead and thus does not possess most commonly recognized civil

rights[,]” including the ability to assert civil actions. Gallop v. Adult Correctional

Institutions, 182 A.3d 1137, 1141 (R.I. 2018) (Gallop II). Until today this Court has

not addressed the constitutionality of the civil death statute. See Gallop v. Adult

Correctional Institutions, 218 A.3d 543, 550 (R.I. 2019) (Gallop III) (declining to

address arguments that the civil death statute is unconstitutional because the issue

was barred by the “raise-or-waive” rule and procedural law).

The plaintiffs allege that the civil death statute violates article 1, section 5 of

the Rhode Island Constitution. They contend that article 1, section 5 creates a

fundamental right of access to the courts and that the civil death statute

impermissibly denies them this right.

Applicability of Article 1, Section 5

Article 1, section 5 of the Rhode Island Constitution declares that:

“Every person within this state ought to find a certain
remedy, by having recourse to the laws, for all injuries or
wrongs which may be received in one’s person, property,
or character. Every person ought to obtain right and
justice freely, and without purchase, completely and
without denial; promptly and without delay; conformably
to the laws.”

We first consider the threshold question of whether plaintiffs’ arguments are

inapposite because “article 1, section 5, is not a self-executing constitutional

provision[.]” Smiler v. Napolitano, 911 A.2d 1035, 1039 n.5 (R.I. 2006). This Court

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has recognized that claims brought under constitutional provisions that are not self-

executing do not give rise to a private cause of action and, thus, cannot be

maintained. See Doe v. Brown University, 253 A.3d 389, 399, 401 (R.I. 2021)

(holding that plaintiffs could not maintain a cause of action under the

antidiscrimination clause of the Rhode Island Constitution because the clause was

not self-executing); Bandoni v. State, 715 A.2d 580, 595 (R.I. 1998) (holding that

plaintiffs could not maintain a cause of action for money damages under a

constitutional amendment that was not self-executing).

Very significantly, plaintiffs are not asserting new substantive rights by

invoking article 1, section 5 as a basis for a private cause of action. Cf. Henry v.

Cherry & Webb, 30 R.I. 13, 30, 73 A. 97, 107 (1909) (pointing out that article 1,

section 5 is not self-executing and cannot give rise to new causes of action because

“the form and extent of [an adequate legal remedy] is necessarily subject to the

legislative power”) (quoting In re Nichols, 8 R.I. 50, 54 (1864)). The plaintiffs do

not allege a violation of article 1, section 5 for purposes of obtaining money

damages. Rather, plaintiffs have alleged common law negligence actions against

defendants in the Superior Court pursuant to G.L. 1956 § 8-2-14, which provides

that “[t]he superior court * * * shall have exclusive original jurisdiction of all * * *

actions at law in which the amount in controversy shall exceed the sum of ten

thousand dollars[.]” The hearing justice ruled that plaintiffs are being prohibited

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from asserting those claims by virtue of the civil death statute, and they seek to

invoke article 1, section 5 to “protect[] access to our state’s courts.” Smiler, 911 A.2d

at 1039 n.5 (quoting Binette v. Sabo, 710 A.2d 688, 692 (Conn. 1998)).

Indeed, this Court has recognized that the purpose of article 1, section 5 is to

“forbid[] the total denial of access to the courts for the adjudication of a recognized

claim.” Bandoni, 715 A.2d at 595; see also Bartlett v. Danti, 503 A.2d 515, 518 (R.I.

1986) (conducting judicial review of a statute based on article 1, section 5 and

finding that the statute was unconstitutional because it prevented litigants from

effectively pursuing claims); Lemoine v. Martineau, 115 R.I. 233, 239, 342 A.2d

616, 621 (1975) (invalidating a statute that impinged on “art. I, § 5’s edict that any

person having recourse to the legal processes shall be afforded the opportunity of

having the wrong he sustained remedied promptly and without delay”). Therefore,

we are of the opinion that, as a matter of state constitutional law, plaintiffs’

challenges to the constitutionality of the civil death statute are not barred simply

because article 1, section 5—the basis for those challenges—is not self-executing.

Constitutionality of the Civil Death Statute

We now turn to the constitutionality of the civil death statute. Article 1 of the

Rhode Island Constitution “established, maintained, and preserved” certain

“essential and unquestionable rights” that “shall be of paramount obligation in all

legislative, judicial and executive proceedings.” R.I. Const., art. 1, Intro. Thus, since

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1843 when the Rhode Island Constitution first became effective, the people of this

state have enjoyed a constitutionally protected right of access to the courts. R.I.

Const., art. 1, § 5 (“Every person within this state ought to find a certain remedy, by

having recourse to the laws, for all injuries or wrongs” and should “obtain right and

justice freely, * * * completely and without denial[.]”). The right of access to the

courts is a fundamental right guaranteed by the state constitution. See Palazzo v.

Alves, 944 A.2d 144, 150 (R.I. 2008) (stating that statutes that limit citizens’ ability

to bring lawsuits must “be limited in scope lest the constitutional right of access to

the courts * * * be improperly thwarted”).

The defendants argue that the civil death statute does not impinge on the right

of access to the courts because, they contend, it only prohibits a life prisoner’s

“ability to pursue a negligence claim for damages.” However, the sweep of the civil

death statute is actually far broader. The General Assembly may, without violating

article 1, section 5, enact “laws that may limit a party from bringing a claim in our

courts.” Kennedy v. Cumberland Engineering Company, Inc., 471 A.2d 195, 198

(R.I. 1984). However, the limitations imposed must be “reasonable” and may not

“total[ly] den[y] * * * access to the courts for adjudication of a claim even before it

arises[.]” Id.; see State v. D’Amario, 725 A.2d 276, 280-81 (R.I. 1999) (holding that,

as part of a plea agreement, a defendant could waive his right to file pro se actions

in the Superior Court for a period of three years where the hearing justice found that

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the defendant being allowed to proceed pro se constituted a real threat of abuse to

the judicial system and that the condition constituted a reasonable limitation).

As this Court has recognized, the civil death statute extinguishes a life

prisoner’s civil rights “by operation of law” and prevents such a prisoner from

bringing any civil actions in state courts. Gallop II, 182 A.3d at 1141. In our view,

this amounts to a complete bar on a life prisoner’s right to access the courts that is

inconsistent with article 1, section 5. See Cok v. Read, 770 A.2d 441, 444, 445 (R.I.

2001) (vacating an order that prohibited a plaintiff from appearing as a pro se litigant

in any Superior Court civil action because the “[a]cross the board restriction[] to

court access” was not supported by specific findings that the “abuse is so continuous

and widespread as to suggest no reasonable alternative” (quoting Cok v. Family

Court of Rhode Island, 985 F.2d 32, 36 (1st Cir. 1993))). Moreover, the

constitutional “requirement of access to the courts is not dependent on the type of

legal matter involved * * * and indeed may extend to all civil actions[.]” Souza v.

Travisono, 368 F. Supp. 959, 966 (D.R.I. 1973), aff’d, 498 F.2d 1120, 1124 (1st Cir.

1974). Therefore, we conclude that in completely eliminating access to the courts,

the civil death statute plainly infringes on plaintiffs’ rights under article 1, section 5.

Having determined that the civil death statute implicates “an expressly

enumerated constitutional right” under our state constitution, “this Court must

examine the statute with ‘strict scrutiny.’” Cherenzia v. Lynch, 847 A.2d 818, 823

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(R.I. 2004) (quoting Kennedy v. State, 654 A.2d 708, 712 (R.I. 1995)). Because

strict scrutiny is the proper basis under which to examine the civil death statute, “the

burden is no longer on the challenger to prove that it is unconstitutional beyond a

reasonable doubt.” Federal Hill Capital, LLC v. City of Providence by and through

Lombardi, 227 A.3d 980, 985 n.6 (R.I. 2020). Rather, the burden shifts to “the state

to demonstrate that the legislation was ‘justified by a compelling government

interest and was narrowly drawn to serve that interest[.]’” Id. (brackets omitted)

(quoting Brown v. Entertainment Merchants Association, 564 U.S. 786, 799 (2011)).

In support of their contention that the civil death statute is constitutional,

defendants advance a single governmental interest: that it functions as an additional

sanction imposed upon some of the state’s worst criminals and furthers the goals of

punishment and deterrence. This Court has recognized that “[t]he loss of civil status

as a form of punishment is a principle that dates back to ancient societies.” Gallop

II, 182 A.3d at 1140-41. However, it is our opinion that this particular additional

punishment is not a compelling reason to override the right of access to the courts

that is textually guaranteed by the Rhode Island Constitution.

Moreover, even assuming, arguendo, that additional punishment upon the

life-imprisoned is a compelling government interest—which we do not believe to be

the case—the civil death statute is not narrowly drawn to serve that interest. The

statute implicates the rights of “[e]very person imprisoned in the [ACI] for life[,]”

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§ 13-6-1, without distinguishing between those prisoners sentenced to life with the

possibility of parole as contrasted with those prisoners sentenced to life without the

possibility of parole. See State v. Sifuentes, 996 A.2d 1130, 1135 (R.I. 2010)

(categorizing a “sentence of life imprisonment without the possibility of parole [a]s

the harshest sentence that can be imposed in this state”).

Here, this Court has—for the first time—been directly confronted with the

constitutionality of § 13-6-1 of the general laws. Cf. Gallop III, 218 A.3d at 550

(declining to reach the issue of constitutionality of § 13-6-1 because it was waived

by the “raise-or-waive” rule and procedural law); Gallop II, 182 A.3d at 1143

(addressing whether § 13-6-1 was applicable to bar the plaintiff’s claims). After

careful consideration, we have determined that the entirety of this statute is

unconstitutional and in clear contravention of the provisions of article 1, section 5

of the Rhode Island Constitution because it completely deprives individuals of an

expressly enumerated constitutional right. See United States v. Butler, 297 U.S. 1,

63 (1936) (“This [C]ourt neither approves nor condemns any legislative policy. Its

delicate and difficult office is to ascertain and declare whether the legislation is in

accordance with, or in contravention of, the provisions of the Constitution; and,

having done that, its duty ends.”). The civil death statute deprives those persons

imprisoned at the ACI for life of their right to bring civil actions in our state courts.

It is clear to us that the right infringed upon by the civil death statute is the right to

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seek redress for any type of injury or complaint, thereby unconstitutionally denying

the plaintiffs the very right to gain access to the courts.

Conclusion

For the foregoing reasons, that portion of the order entered in the Zab action,

PM 17-4195, on September 11, 2019, that grants the defendants’ motion for

summary judgment as to Zab’s negligence claim, is reversed. That portion of said

order that grants summary judgment in favor of the defendants on Zab’s claim under

42 U.S.C. § 1983 in affirmed. In addition, that portion of the final judgment entered

in the Zab matter on September 11, 2019, that grants judgment in favor of the

defendants on Zab’s negligence claim is vacated, and that portion of said judgment

that grants judgment in favor of the defendants on Zab’s § 1983 claim is affirmed.

Further, the order entered in the Rivera matter, PC 17-433, on September 11,

2019, granting summary judgment in favor of the DOC is reversed; the judgment

entered in said matter of even date is vacated.

The papers in these cases shall be returned to the Superior Court with direction

to enter new orders in both matters consistent with this opinion. Moreover, the

Superior Court is directed to enter a new judgment in the Zab matter consistent with

this opinion.

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 Justice Goldberg, dissenting. Today, the majority has declared

unconstitutional the civil death statute, G.L. 1956 § 13-6-1. The majority decision

rests solely upon article 1, section 5 of the Rhode Island Constitution. Because I am

convinced that this case can and should be decided on nonconstitutional grounds and

does not present circumstances warranting such an urgency to delve into

constitutional issues, I respectfully dissent. In accordance with our well-settled

jurisprudence discussed infra, Rhode Island’s civil death statute should be addressed

in a proper manner—that is, prospectively by the General Assembly.

First, it is worth noting that this Court has never held that § 13-6-1 bars life

prisoners from asserting all claims. See Carillo v. Moran, 463 A.2d 178, 180-81 (R.I.

1983) (Rhode Island life prisoner raising a constitutional challenge to a search and

seizure conducted while he was in prison) (citing State v. Carillo, 122 R.I. 392, 394-

95, 407 A.2d 491, 493 (1979)); cf. Clark v. Moran, 942 F.2d 24, 25 (1st Cir. 1991)

(Rhode Island life prisoner being held at the ACI seeking habeas corpus relief in

federal court). In Palmigiano v. Garrahy, 443 F. Supp. 956 (D.R.I. 1977), a life

prisoner launched a class-action lawsuit on behalf of all prisoners in the ACI,

“including lifers,” challenging the conditions of confinement. See Palmigiano, 443

F. Supp. at 959, 967. That case spawned decades-long litigation regarding virtually

every aspect of the ACI, leading to the appointment of a “Master” in order to

vindicate the rights of the prisoner class. See id. at 986, 989.

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 The only issue before this Court in the cases at bar is whether the civil death

statute bars plaintiffs from bringing the instant negligence claims against the prison

where plaintiffs are serving life sentences for horrific crimes. We have already

answered this question. In Gallop v. Adult Correctional Institutions, 182 A.3d 1137

(R.I. 2018) (Gallop II), a unanimous Court definitively held that the Superior Court

did not have authority to hear the life-prisoner plaintiff’s negligence claim. See

Gallop II, 182 A.3d at 1141.1

“In the typical case, this Court is ‘quite reluctant to reach constitutional issues

when there are adequate non-constitutional grounds upon which to base our

rulings.’” Mackie v. State, 936 A.2d 588, 596 (R.I. 2007) (quoting State v. Lead

Industries Association, Inc., 898 A.2d 1234, 1239 (R.I. 2006)). The facts of this case

give me no reason to deviate from established jurisprudence in Gallop II. “This

[C]ourt has explicitly held that article 1, section 5, ‘should not be interpreted to bar

the General Assembly from enacting laws that limit or place a burden upon a party’s

right to bring a claim in our courts.’” Dowd v. Rayner, 655 A.2d 679, 683 (R.I. 1995)

(quoting Walsh v. Gowing, 494 A.2d 543, 547 (R.I. 1985)). Although we have

recognized that a statute cannot “prohibit court access absolutely for a generally

recognized claim to a class of plaintiffs[,]” Kennedy v. Cumberland Engineering

1
The constitutionality of the civil death statute under article 1, section 5 of the Rhode
Island Constitution was not raised in Gallop v. Adult Correctional Institutions, 182
A.3d 1137 (R.I. 2018); thus, this issue was not before us.

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Company, Inc., 471 A.2d 195, 198 (R.I. 1984), we should refrain from looking

beyond the facts of the case before us. See State v. Russell, 890 A.2d 453, 459, 462

(R.I. 2006) (“When a limiting construction can be placed on a statute to save its

constitutionality, an overbreadth analysis should be avoided. * * * [T]his Court’s

review of a vagueness challenge to a statute is limited to ‘the facts of the case at

hand.’ * * * We will not consider how the statute may apply to a hypothetical

defendant in another case[.]”) (quoting State v. Fonseca, 670 A.2d 1237, 1240 (R.I.

1996)); see also State v. Berberian, 416 A.2d 127, 129 (R.I. 1980) (same).

Prison inmates, especially life prisoners, are not entitled to the same degree of

constitutional rights as are members of society at large, and that includes the right to

bring tort claims against the warden for a slip and fall or a burned hand. See Shaw v.

Murphy, 532 U.S. 223, 229 (2001) (“We nonetheless have maintained that the

constitutional rights that prisoners possess are more limited in scope than the

constitutional rights held by individuals in society at large.”); see also Lewis v.

Casey, 518 U.S. 343, 354, 355 (1996) (“Nearly all of the access-to-courts cases in

the Bounds line involved attempts by inmates to pursue direct appeals from the

convictions for which they were incarcerated, * * * or habeas petitions[.] * * *

Bounds does not guarantee inmates the wherewithal to transform themselves into

litigating engines capable of filing everything from shareholder derivative actions to

slip-and-fall claims.”) (citing Bounds v. Smith, 430 U.S. 817 (1977)); Turner v.

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Safley, 482 U.S. 78, 96 (1987) (distinguishing between typical inmates and life

prisoners with respect to the constitutional right to marriage). These considerations

should control our analysis in this case, and we should be mindful that we are

addressing issues concerning persons incarcerated with life sentences for horrific

crimes and under the control of the warden, whose obligations to provide an orderly

and secure institution are paramount.

“Repeal is the province of the Legislature.” Gallop II, 182 A.3d at 1141. It is

a longstanding principle that the “function of adjusting remedies to rights is a

legislative rather than a judicial one[.]” Henry v. Cherry & Webb, 30 R.I. 13, 37, 73

A. 97, 107 (1909); see Fournier v. Miriam Hospital, 93 R.I. 299, 305, 175 A.2d 298,

301 (1961) (“This [C]ourt * * * [has] observed that, ‘[a]lthough, in a free

government, every man is entitled to an adequate legal remedy for every injury done

to him, yet the form and extent of it is necessarily subject to the legislative power

* * *.’”) (quoting In re Nichols, 8 R.I. 50, 54 (1864)). Common law rights can be

limited or abrogated by the Legislature. See Kennedy, 471 A.2d at 199 (“[T]his

[C]ourt [has] noted the Legislature’s power to alter the substance of the common

law.”). In my more than two decades of service on this Court, I cannot recall ever

having declared a statute to be unconstitutional; this should not be the first case with

such a drastic result in light of our longstanding jurisprudence.

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 Therefore, in my opinion, because the facts of this case do not warrant a

usurpation of the legislative power, this Court should allow the General Assembly

an opportunity to address the constitutional concerns that the majority raises, as we

have done in previous cases. See State by and through Kilmartin v. Rhode Island

Troopers Association, 187 A.3d 1090, 1102 (R.I. 2018) (noting that the General

Assembly responded to the Court’s abrogation of sovereign immunity in Becker v.

Beaudoin, 106 R.I. 562, 261 A.2d 896 (1970) by enacting the Governmental Tort

Liability Act); see also Lacey v. Reitsma, 899 A.2d 455, 458 (R.I. 2006) (applying

the recreational use statute, but noting the Court’s concerns and affording the

Legislature an opportunity to revisit the statute: “Perhaps the time has come for the

General Assembly to revisit the provisions of the Recreational Use Statute[.]”);

Barrett v. Barrett, 894 A.2d 891, 895 (R.I. 2006) (noting that in Digby v. Digby, 120

R.I. 299, 388 A.2d 1 (1978) the General Assembly responded to the Court’s

abrogation of interspousal immunity by statutorily abrogating the doctrine); Digby,

120 R.I. at 305, 388 A.2d at 4 (granting a brief stay of prospective abrogation of

interspousal immunity); Becker, 106 R.I. at 571-72, 261 A.2d at 901-02 (granting a

brief stay of execution to afford the General Assembly an opportunity to enact

legislation regarding municipal tort immunity).

Finally, it is my belief that the majority’s opinion will unnecessarily open the

floodgates to frivolous inmate claims that will interfere with the orderly operation

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of the ACI. For this reason alone, this Court should have declared an intermission,

rather than rush to judgment and interfere with the General Assembly’s role.

Consequently, I respectfully dissent.

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 STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Cody-Allen Zab v. Rhode Island Department of
Corrections et al.
Title of Case
Jose R. Rivera v. State of Rhode Island Department of
Corrections, by and through its Director, Patricia
Coyne-Fague, in her official capacity.
No. 2019-459-Appeal.
(PM 17-4195)
Case Number
No. 2019-462-Appeal.
(PC 17-433)

Date Opinion Filed March 2, 2022

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.

Written By Associate Justice Erin Lynch Prata

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Jeffrey A. Lanphear

For Plaintiffs:

Sonja L. Deyoe, Esq.
Attorney(s) on Appeal For Defendants:

Katherine C. Sadeck
Department of Attorney General

SU-CMS-02A (revised June 2020)