Almeida v. Fall River Police Station et al

Filing 14

Judge Patti B. Saris: ORDER entered. MEMORANDUM AND ORDER: All claims against defendants Bristol District Attorney's office, the Fall River Police Station, Zarrora, Inc., and Bristol County's Government Agency are DISMISSED; The Clerk shal l issue a summons with respect to defendant Police Officer John Rose; and The Clerk shall send the summons, a copy of the amended complaint (Docket No. 11), and this Memorandum and Order to the plaintiff, who must thereafter serve the defendant in ac cordance 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 Service shall serve the summonses, Complaint, an d this Memorandum and Order upon the defendant, in the manner directed by the plaintiff, with all costs of service to be advanced by the United States Marshal Service. 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.(PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOSE A. ALMEIDA,
Plaintiff,
v.
FALL RIVER POLICE STATION,
ET AL.,
Defendants.

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CIVIL ACTION NO. 12-11476-PBS
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MEMORANDUM AND ORDER
October 25, 2012
SARIS, U.S. D.J.
I.

Introduction

On July 30, 2012 , plaintiff Jose A. Almeida (“Almeida”),
then an inmate at the Bristol County House of Corrections and
currently housed at the Barnstable County Correctional Facility
in Bourne, Massachusetts, filed a self-prepared Complaint
alleging that various defendants used perjured testimony against
him and that he was maliciously prosecuted for armed robbery.
On August 13, 2012, this Court issued a Memorandum and Order
(Docket No. 6) directing Almeida to demonstrate good cause why
this action should not be dismissed because of legal impediments
which included: (1) the failure of Almeida to plead his claims in
accordance with Rule 8 of the Federal Rules of Civil Procedure;
(2) the lack of a cognizable claim against the Fall River Police
Station (a non-suable entity); (3) the immunity of the police
officer and individual defendants from suits for damages based on
alleged perjured testimony before the grand jury; (4) the lack of

state action of a private defendant; (5) the lack of respondeat
superior liability in civil rights actions; (6) the sovereign
immunity of the District Attorney’s Office; and (7) the absolute
prosecutorial immunity of the Assistant District Attorney.
On September 8, 2012, Almeida filed a second Motion for
Appointment of Counsel (Docket No. 8).

On September 18, 2012,

this Court issued a Memorandum and Order (Docket No. 9) denying
the request for counsel and directing Almeida to demonstrate good
cause in writing why his claims should not be dismissed.
Thereafter, on October 15, 2012, Almeida filed a Response
(Docket No. 10) in which he claims the Amended Complaint (Docket
No. 11, filed October 18, 2012) cures the deficiencies in the
original.

He also asserts (erroneously) that this Court has

supplemental jurisdiction over his claims pursuant to the Federal
Tort Claims Act (“FTCA”).1

Additionally, in the Response,

1

Almeida’s suit concerns claims arising under 42 U.S.C.
§ 1983 for violations of constitutional rights by state actors,
not federal actors. None of the defendants named in the original
complaint involve federal actors, and thus the FTCA is not
applicable. Presumably, Almeida meant to allege supplemental
jurisdiction under the Massachusetts Tort Claims Act (“MTCA”);
however, he fails to indicate whether he has made the
administrative presentment requirements before bringing suit
under this cause of action. The MTCA permits recovery for
liability against public employers, including the Commonwealth of
Massachusetts, and serves as a waiver of sovereign immunity under
certain circumstances. Before filing suit, a party must first
have presented the claim to the executive officer of the public
employer and received a final decision on the claim. Mass. Gen.
Laws ch. 258, § 4. The MTCA does not apply to suits against
individual public employees, such as Police Officer Rose. It
applies only to claims against the public employer. See Mass.
2

Almeida appears to have abandoned claims against all defendants
but now asserts claims against defendant Police Officer John Rose
(“Rose”).

He alleges due process violations based on Rose’s

alleged suggestive identification and perjury in connection with
Almeida’s criminal prosecution.

He claims his evidence was

obtained from August 7, 2008 to April 7, 2010 (the period of his
incarceration).

He also alleges Rose is not entitled to

qualified immunity.
In addition to asserting his claims in the body of the
Response, Almeida’s amended complaint (Docket No. 11), he lists
only Rose as the defendant.

He reasserts, inter alia, the

deliberate indifference of Rose in making false claims concerning
Almeida’s criminal involvement, and challenges both the
identification and photo array processes.2
II. Discussion
I.

Dismissal of Claims Against All Defendants Except Rose
Although Almeida reiterates many of the allegations

contained in the original complaint, it appears the amended
complaint now only includes Rose as a defendant.

In any event,

the Court finds that Almeida has failed to show good cause why

Gen. Laws ch. 258, § 2.
2

Almeida alleges that “[t]he identification of the defendant
[Almeida] was a cross racial identification witch [sic] defendant
states is by itself mostly unreliable and would trigger extra
care by the police in securing an Identification (the defendant
is not African American).” Am. Compl. at 6, ¶ 1.
3

his claims against the Bristol District Attorney’s office, the
Fall River Police Station, Zarrora, Inc., and Bristol County’s
Government Agency should not be dismissed.
Accordingly, it is hereby Ordered that all claims against
these defendants are DISMISSED.3
II.

Claims Against Defendant Police Officer Rose
As noted in this Court’s prior Memorandum and Order, it was

unclear whether Almeida intended to sue Rose as an individual.
In light of the amended complaint, however, this Court will
consider the only defendant in this action is Rose.
Next, Almeida’s amended complaint does not comport with the
pleading requirements of Rule 8 of the Federal Rules of Civil
Procedure; however, he sets forth the factual bases for his
constitutional claims sufficient to survive a preliminary
screening.

Thus, at this juncture the Court will permit this

action to proceed as pled, with the operative pleading being the
amended complaint (Docket No. 11).

This is without prejudice to

the defendant filing a Motion for a More Definite Statement under
Rule 12(e), or some other appropriate motion after service has
been made.
Accordingly, the Clerk shall issue a summons as to defendant
Rose, and the United States Marshal Service shall effect service,

3

This ruling is not intended as a separate and final
judgment generating appeal rights.
4

as directed below.
III.

Conclusion

Based on the foregoing, it is hereby ORDERED that:
1.

All claims against defendants Bristol District Attorney’s
office, the Fall River Police Station, Zarrora, Inc., and
Bristol County’s Government Agency are DISMISSED;

2.

The Clerk shall issue a summons with respect to defendant
Police Officer John Rose; and

3.

The Clerk shall send the summons, a copy of the amended
complaint (Docket No. 11), and this Memorandum and Order to
the plaintiff, who must thereafter serve the defendant 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 Service shall serve the
summonses, Complaint, and this Memorandum and Order upon the
defendant, in the manner directed by the plaintiff, with all
costs of service to be advanced by the United States Marshal
Service. 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.

SO ORDERED.
/s/ Patti B. Saris
PATTI B. SARIS
UNITED STATES DISTRICT JUDGE

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