Smith v. Mahoney et al

Filing 7

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER. The motion to proceed in forma pauperis 4 is ALLOWED. Smith is directed to show cause, within 35 days of the date of this order, why this action should not be dismissed. Failure to comply with this directive will result in dismissal of the action.(PSSA, 3)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

BRANDON L SMITH,
Plaintiff,
v.
WILLIAM MAHONEY, et al.,
Defendants.

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Civil Action No.
11-11225-NMG

MEMORANDUM AND ORDER
GORTON, J.
For the reasons stated below, the Court (1) allows the
motion for leave to proceed in forma pauperis; and (2) orders the
plaintiff to show cause why this action should not be dismissed.
I.

Background
On July 11, 2011, Brandon L. Smith, who represents that he

is a resident of Massachusetts, filed a self-prepared civil
rights complaint and a motion for leave to proceed in forma
pauperis in the United States District Court for the Southern
District of Florida.
(S.D. Fla.).

See Smith v. Mahoney, C.A. No. 11-22469

Because Smith alleges that all of the parties

reside in Massachusetts and that all of the underlying acts
occurred in Massachusetts, the court in Florida concluded that
venue did not exist within that district and sua sponte
transferred the case to this District.

See id. (docket entry

#5).
The Court summarizes the complaint, crediting the

plaintiff’s factual allegations for the sole purpose of a
preliminary review of the complaint.

On April 18, 2007,

defendant William Mahoney, a teacher and coach at Boston’s
Brighton High School, supposedly received a threatening phone
message.

He reported this call to the Boston Police.

time, Smith was a student at Brighton High School.

At the

Boston Police

Detective George P. Foley performed an insufficient investigation
into the alleged phone threat and ultimately arrested Smith for
making the call.

Because Smith never even heard the alleged

phone message, he does not know whether Mahoney or Officer Foley
“concocted” the incident.

Compl. at 2.

Smith was later

arraigned at the Brighton District Court and then confined at the
Nashua Street Jailhouse.

Later, at the “11th hour,” “the truth

dawned on the Defendants and they saw the need for the Plaintiff
[sic] release from Nashua Street Jailhouse.”

Id. at 3.1

Smith names Mahoney and Foley as defendants.

The plaintiff

also names as defendants Boston Public School employees Gilbert
White and Nicholas Chareas, but the plaintiff does not allege any
conduct by these two defendants.

The plaintiff brings claims for

false arrest, false imprisonment, intentional infliction of
emotional distress, malicious prosecution, interference with
property and liberty interests, negligent infliction of emotional

1

The Court infers from this allegation that any charges
arising from the alleged threatening phone message were dropped.
2

distress, violation of the Eighth Amendment, the “racial but
for doctrine” id. at 5, negligence, “lack of skill” id.,
violation of 42 U.S.C. § 1983 for failure to train, violation of
42 U.S.C. § 141412, and violations of 18 U.S.C. §§ 241, 242, and
245.

Smith seeks expungement of his criminal record and monetary

damages.
II.

Discussion
A.

Motion to Proceed In Forma Pauperis

Upon review of the motion to proceed in forma pauperis, the
Court concludes that the plaintiff has adequately shown that he
is without means to prepay the $350.00 filing fee.

The Court

therefore allows the motion.
B.

Screening of the Complaint
1.

Court’s Authority to Screen the Complaint

When a plaintiff seeks to file a complaint without
prepayment of the filing fee, summonses do not issue until the
Court reviews the complaint and determines that it satisfies the
substantive requirements of 28 U.S.C. § 1915.

This statute

authorizes a court to dismiss a complaint sua sponte if the
claims therein are frivolous, malicious, fail to state a claim on
which relief may be granted, or seek monetary relief against a

2

Smith cites to 18 U.S.C. § 14141, see Compl. at 6, but
there is no statute with this citation. The Court assumes that
Smith meant to bring a claim under 42 U.S.C. § 14141.
3

defendant who is immune from such relief.
§ 1915(e)(2); 28 U.S.C. § 1915A(b).

See 28 U.S.C.

In conducting this review,

the Court liberally construes the complaint because the plaintiff
is proceeding pro se.

See Haines v. Kerner, 404 U.S. 519, 520-21

(1972).
Smith has failed to state a claim upon which relief may be
granted for the reasons enumerated below.
2.

No Cause of Action Under Federal Criminal Statutes

Smith purports to bring claims under 18 U.S.C. §§ 241, 242,
and 245, and 14141.

These statutes, however, provide criminal

prosecution by the United States--not by a private citizen.

See

Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (private citizen
has no authority to initiate a criminal prosecution).

Moreover,

a private citizen does not have a right to effect the criminal
prosecution and incarceration of another individual: “[A] private
citizen lacks a judicially cognizable interest in the prosecution
or nonprosecution of another.”

Linda R.S. v. Richard D., 410

U.S. 614, 619 (1973).
3.

No Private Right of Action Under 42 U.S.C. § 14141

Section 14141 of Title 42 of the United States Code makes it
unlawful for a government actor “to engage in a pattern or
practice of conduct by law enforcement officers . . . that
deprives persons of rights, privileges, or immunities secured or
protected by the Constitution or laws of the United States.”
4

42

U.S.C. § 14141(a).

The statute explicitly limits the right to

bring a cause of action thereunder to the Attorney General of the
United States: “Whenever the Attorney General has reasonable
cause to believe that a violation . . . has occurred, the
Attorney General . . . may in a civil action obtain appropriate
equitable and declaratory relief to eliminate the pattern or
practice.”

42 U.S.C. § 14141(b).

A private citizen does not

have a right to bring an action under this statute.
4.

Claims Barred by the Statute of Limitations

Smith’s claims under 42 U.S.C. § 1983 (“1983”)3 and his
state law tort claims are subject to dismissal for failure to
state a claim upon which relief may be granted because the claims
are time barred.

Under Massachusetts law, a plaintiff bringing a

claim for personal injury or for a violation of his civil rights
must file his complaint within three years of the date that he
knew or should have known of his injury and the likely cause
thereof.

See M.G.L. ch. 260, § 2A (actions for personal injuries

3

The Court shall construe all of Smith’s claims for
violations of federal constitutional rights as arising under 42
U.S.C. § 1983. See Arpin v. Santa Clara Valley Transp. Agency,
261 F.3d 912, 925 (9th Cir. 2001) (“[A] litigant complaining of a
violation of a constitutional right does not have a direct cause
of action under the United States Constitution but [rather] must
utilize 42 U.S.C. § 1983.”) This statute provides that any
“person,” acting under the color of state law, who “subjects, or
causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured.” 42 U.S.C. § 1983.
5

must be brought within three years of the time the claim
accrued); M.G.L. ch. 260, § 5B (actions for civil rights actions
must be brought within three years of the time the claim
accrued); Bowen v. Eli Lilly & Co., Inc., 408 Mass. 204, 205-06
(1990) (claim accrues “when a plaintiff discovers, or any earlier
date when she should reasonably have discovered, that [he] has
been harmed or may have been harmed by the defendant’s conduct”).
These Massachusetts statutes of limitations apply to Smith’s
claims under § 1983 as well as to his state law claims.

See

Nieves v. McSweeney, 241 F.3d 46, 51 (1st Cir. 2001) (limitations
period for an action under § 1983 is “borrowed” from the forum
state).4
Here, Smith complains of events that occurred in 2007–-more
than three years before he filed this action.

The nature of the

conduct and injury of which Smith complains is such that Smith
must have known of the objectionable conduct of the defendants at
the time that it occurred.

Smith had three years from the time

the arrest, detention, and dropping of any charges against him to
file suit thereon, but failed to do so.
5.

Other Defects

4

Although the statute of limitations is an affirmative
defense, and the Federal Rules of Civil Procedure do not require
a plaintiff to plead facts to avoid potential affirmative
defenses, a complaint can be dismissed for failure to state a
claim if the allegations therein show that relief is barred by
the relevant statute of limitations. See Bock v. Jones, 549 U.S.
199, 215 (2007).
6

The Court also notes that the complaint does not comply
with Fed. R. Civ. P. 8(a) (“Rule 8(a)”) in regards to defendants
White and Chareas.

Under Rule 8(a) of the Federal Rules of Civil

Procedure, a complaint must include “a short and plain statement
of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).

At a minimum, the complaint must “give

the defendant fair notice of what the plaintiff’s claim is and
the grounds upon which it rests.”

Calvi v. Knox County, 470 F.3d

422, 430 (1st Cir. 2006) (quoting Educadores Puertorriqueños en
Acción v. Hernández, 367 F.3d 61, 66 (1st Cir.

2004)).

This

means that the statement of the claim must “at least set forth
minimal facts as to who did what to whom, when, where, and why.”
Id. (quoting Educadores, 367 F.3d at 68).

Here, Smith has not

identified any misconduct by White and Chareas, and therefore he
has not given these defendants fair notice of the claims against
them.
Smith has also not complied with Rule 8(a) in regards to his
claim under the “racial but for doctrine.”

Compl. at 5.

He

alleges therein, “If the plaintiff were not an African-Aermican,
the Defendants would have handled the incident differently.”

Id.

As this allegation is conclusory, and Smith does not make any
supporting factual allegations, the Court is not required to
credit this assertion.

See Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007) (under Rule 8(a), court is not “bound to

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accept as true a legal conclusion couched as a factual
allegation” (quoting Papasan v. Allain, 478 U.S. 265, 286
(1986))).
Finally, the Court notes that the Eighth Amendment’s
prohibition of cruel and unusual punishment only applies after a
litigant has been found guilty of a crime.

See Martinez-Rivera

v. Sanchez Ramos, 498 F.3d 3, 9 (1st Cir. 2007).

Because the

charges against Smith were dropped, he has failed to state a
claim under § 1983 for a violation of his rights under the Eighth
Amendment.
ORDER
In accordance with the foregoing:
(1)

The motion to proceed in forma pauperis (#4) is

ALLOWED.
(2)

Smith is directed to show cause, within thirty-five

(35) days of the date of this order, why this action should not
be dismissed for the reasons stated above.

Failure to comply

with this directive will result in dismissal of the action.

So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated: 7/25/11

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