Gupta v. City of Cambridge et al

Filing 17

Judge William G. Young: MEMORANUDM AND ORDER entered. The motion (#14) for leave to proceed in forma pauperis is granted; plaintiff is assessed an initial, partial filing fee; the motion (#4) for appointment of counsel is denied without prejudice to renewal after defendants have replied to the complaint; the Clerk shall issue summonses for service of the complaint on the City of Cambridge, the Middlesex County Sheriff, and Deputy Sheriff John Smith and the motion (#2) to appoint special process server is allowed. No summons shall issue with respect to the John Doe defendant. The civil rights claim against defendant Deck Brewer, a Massachusetts inmate, is subject to dismissal pursuant to 28 U.S.C. 1915(e)(2) for failure to state a claim up on which relief may be granted..... defendant Brewer is a private individual and is not alleged to have been acting under color of state law. If plaintiff wishes to pursue the claim against defendant Brewer, he must, within forty-two (42) days of the date of this Memorandum and Order, show good cause why the claim against defendant Brewer should not be dismissed or file an amended complaint.(PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
BIRENDAR GUPTA,
Plaintiff,
v.
CITY OF CAMBRIDGE, et al,
Defendants.

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C.A. No. 12-11370-WGY

ORDER
1.

The motion (#14) for leave to proceed in forma pauperis
is granted.

2.

Plaintiff is assessed an initial, partial filing fee of
$19.63 with the balance of $330.37 to be paid in
accordance with 28 U.S.C. § 1915(b)(2).

3.

The Clerk shall issue summonses for service of the
complaint on the City of Cambridge, the Middlesex
County Sheriff, and Deputy Sheriff John Smith.

4.

The motion (#2) to appoint special process server is
allowed. The Clerk shall send the summonses,
complaint, and this Order to the plaintiff, who must
thereafter serve the defendant(s) in accordance with
Federal Rule of Civil Procedure 4(m). The plaintiff may
elect to have service made by the United States Marshal
Service. If directed by the plaintiff to do so, the
United States Marshal shall serve the summons(es),
amended complaint, and this Order upon the defendant,
in the manner directed by the plaintiff, with all costs
of service to be advanced by the United States.
Notwithstanding Fed. R. Civ. P. 4(m) and Local Rule
4.1, the plaintiff shall have 120 days from the date of
this Order to complete service.

5.

No summons shall issue with respect to the John Doe
defendant. If and/or when plaintiff discovers the
identity of the Doe defendant, he may file an Amended
Complaint substituting the Doe defendant's true name
and he may request the issuance of a summons at that
time.

6.

The civil rights claim against defendant Deck Brewer, a
Massachusetts inmate, is subject to dismissal pursuant
to 28 U.S.C. 1915(e)(2) for failure to state a claim
upon which relief may be granted. In order to state a

claim under 42 U.S.C. § 1983, the plaintiff “must show
that the alleged deprivation of [his] constitutional
rights was committed by a person acting under color of
state law.” Rodrigues v. Furtado, 950 F.2d 805, 813
(1st Cir. 1991); see Rumford Pharmacy, Inc. v. City of
East Providence, 970 F.2d 996, 998 (1st Cir. 1992).
Here, defendant Brewer is a private individual and is
not alleged to have been acting under color of state
law. If plaintiff wishes to pursue the claim against
defendant Brewer, he must, within forty-two (42) days
of the date of this Memorandum and Order, show good
cause why the claim against defendant Brewer should not
be dismissed or file an amended complaint.
7.

The motion (#4) for appointment of counsel is denied
without prejudice to renewal after defendants have
replied to the complaint.

SO ORDERED.
January 29, 2013
DATE

/s/ William G. Young
WILLIAM G. YOUNG
UNITED STATES DISTRICT JUDGE

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