Almeida v. Fall River Police Station et al

Filing 21

Chief Judge Patti B. Saris: ORDER entered. MEMORANDUM AND ORDER: Plaintiff's Notice of Appeal (Docket No. 17) and his Clarified Amended Complaint (Docket No. 18) are CONSTRUED together as a Motion for Reconsideration of the dismissal of claims pursuant to the Memorandum and Order (Docket No. 14), and as a Motion for Leave to File a Clarified Amended Complaint; Plaintiff's Motion for Reconsideration (Docket Nos. 17 and 18) is DENIED; Plaintiff's Motion for Leave to File a Clarifie d Amended Complaint (Docket Nos. 17 and 18) is DENIED; Plaintiff's Clarified Amended Complaint (Docket No. 18) is STRICKEN; and the operative pleading is the Amended Complaint (Docket No. 11); Plaintiff may not assert additional claims of retali ation and/or the denial of access to the courts in this action; should he wish to pursue those claims, he must file a separate action and pay the $350.00 filing fee or seek a waiver thereof in accordance with 28 U.S.C. § 1915;Plaintiff must serve Officer Rose in accordance with the Memorandum and Order (Docket No. 14); failing which, this action will be dismissed; Plaintiff is PROHIBITED from filing any further amended or clarified complaints in this action without leave of court and h e may seek leave only after the defendant has filed a response to the amended complaint (Docket No. 11); and a Copy of this Memorandum and Order shall be TRANSMITTED to the First Circuit for whatever action regarding USCA No. 13-1028 it deems appropriate in light of this Courts construction of the Notice of Appeal and Clarified Amended Complaint as a Motion for Reconsideration of the dismissal of claims as set forth in the Memorandum and Order (Docket No. 14).(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
January 22, 2013
SARIS, CHIEF, U.S.D.J.
I.

Introduction

On July 30, 2012 , plaintiff Jose A. Almeida (“Almeida”),
then an inmate at the Bristol County House of Correction and
currently housed at the Worcester County Jail and House of
Correction in West Boylston, Massachusetts, filed a civil rights
complaint alleging, inter alia, that perjured testimony was used
against him and that he was maliciously prosecuted for armed
robbery.1
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

1

The list of defendants was not clear. Almeida named as
defendants:(1) the Bristol District Attorney’s office (“DA’s
Office”); (2) the Fall River Police Station; and (3) Zarrora Inc.
He also listed the Bristol County’s Government Agency as a
separate governmental defendant.

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.

The

Memorandum and Order stated that Almeida was not to reiterate his
claims, but to address specifically the legal deficiencies noted
in the opinion (i.e., failure to comply with Rule 8, lack of
state action, lack of respondeat superior liability under § 1983,
sovereign immunity, witness immunity, and prosecutorial
immunity).
Thereafter, on October 15, 2012, Almeida filed a Response
(Docket No. 10) claiming his Amended Complaint (Docket No. 11,
filed October 18, 2012) cured the deficiencies in his original.
Upon review of that pleading, this Court deemed that Almeida had
abandoned his claims against all defendants, but had asserted new
claims against Police Officer John Rose (“Officer Rose”) based on
his alleged suggestive identification as well as his perjury in
connection with Almeida’s criminal prosecution.
Upon review of Almeida’s Amended Complaint, on October 25,

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2012, a further Memorandum and Order issued dismissing all of
Almeida’s claims against defendants Bristol District Attorney’s
office, the Fall River Police Station, Zarrora Inc., and Bristol
County’s Government Agency.

This Court, however, permitted the

claims to proceed against Officer Rose and directed the issuance
of a summons to be served by Almeida.
On January 2, 2013, Almeida filed a “Notice of Appeal and
Appeal to the United States District Courts Judgement or Order”
(Docket No. 17).

The Appeal has been assigned as USCA No. 13-

1028 (1st Cir. 2013).

Almeida’s arguments in support are based

on the contention that this Court should not have dismissed his
claims against all defendants except Officer Rose.

Apparently,

Almeida understood that the Memorandum and Order (Docket No. 6)
prohibited him from restating his original claims in his
response.

Therefore, in the Amended Complaint, he did not assert

any claims against the dismissed defendants, but believed that if
he just used his claims against Officer Rose as an example for
each defendant, that would suffice.
No. 9 at ¶ 5).

See Notice of Appeal (Docket

He states in his Notice of Appeal that he had not

abandoned his claims against the defendants.
Accompanying the Notice of Appeal, Almeida filed a document
entitled “Plaintiff’s Clearified [sic] Amended Complaint” (Docket

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No. 18).2

He contends this pleading complies with Rule 8 of the

Federal Rules of Civil Procedure and sets forth his claims
against all defendants.

Almeida requests that this Court permit

him to serve each of the defendants with the clarified amended
complaint.

He now names 11 defendants: (1) Police Office John

Rose; (2) Police Officer John Doe, a sergeant of the second
shift; (3) Police Officer John Doe, a Lieutenant; (4) Police
Officer John Doe, a Captain; (5) Police Officer John Doe, the
head of internal affairs of the Fall River Police Department; (6)
Joseph Zarrora, a business owner of Zarrora Inc.; (7) Afif Elbaba
(“Elbaba”), an employee of Zarrora Inc.; (8) Assistant District
Attorney Stephen Nadeau (“ADA Nadeau”), the prosecutor of his
criminal case; (9) the City of Fall River/Fall River Police
Department Chief John Doe employer/manager; (10) Zarrora Inc.,
Elbaba’s employer; and (11) Bristol [County] District Attorney’s
Office head District Attorney Sammuel Sutter, as employer.
Almeida’s proposed clarified amended complaint is not
entirely coherent or legible.3

From what can be gleaned, with

one exception discussed below, Almeida reiterates the underlying

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No motion for leave to file the amended complaint was
submitted.
3

Almeida’s handwriting is difficult to read, particularly
where he has tightly squeezed each sentence on the page in order
to use all available space. Although the document contains
numbered paragraphs, it is essentially one long narrative of
events surrounding the robbery and criminal charges that form the
basis of this action.
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factual and legal allegations contained in his original
complaint, albeit with some minor variations and further detailed
description of the incident forming the basis of his claims.
Those allegations are set forth in detail in the Memorandum and
Order (Docket No. 6) and need not be reiterated entirely here.
Briefly summarized, Almeida claims defendant Elbaba, an employee
of Zarrora Inc., was robbed of $9,000.

He later made a 911 call

to report the incident, describing the robber as an AfricanAmerican wearing a T-shirt, a yellow sweatshirt, and a red hat.
Officer Rose responded to the 911 call.

Almeida claims that

Elbaba then provided a different description to Officer Rose than
the one given during the 911 call.

En route to the Fall River

police station, Officer Rose showed Elbaba a picture of a former
employee, and told him that he was going to show him a picture of
the robber.

At the police station, Elbaba was shown a black and

white photograph of Almeida, and he then identified Almeida as
the robber.

Thereafter, Almeida was arrested for armed robbery.

After a second trial, he was found not guilty and was released
from custody.
Almeida claims that Joseph Zarrora is responsible for the
perjured testimony of Elbaba, who, at the time he talked to
police, was feeling the effects of drug use, and denied ever
making the 911 call.

He claims Officer Rose used improper

investigation techniques to mislead Elbaba and testified falsely

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before the grand jury.

Next, he claims that ADA Nadeau knew

about the false information by Officer Rose and Elbaba, and he
deliberately excluded information that would have impeached
Officer Rose.
Count I of Almeida’s clarified amended complaint alleges a
Breach of the Duty to protect.

He contends the defendants are

liable for violations of his constitutional rights by “conducting
and showing legal wrongs to plaintiff’s health and safety failing
to protect him from malicious prosecution, negligence evil motive
intent purjury [sic], unconstitutional conduct, reckless and
callous deliberate indifference....”
(Docket No. 18 at ¶ 65).

Clarified Am. Compl.

He further contends that as a result of

these wrongdoings, he could not pay his bills on time, could not
pay child support, and suffered mental health issues (he states
has been diagnosed with schizophrenic disorder, post traumatic
stress disorder, bipolarism, depression, and anxiety).
Count II alleges the Failure of a Remedy based on the
failure to resolve.

Almeida asserts the City of Fall River/Fall

River Police Department was deliberately indifferent to his
rights based on the actions of its employees.

He asserts that

they are liable because they are the policy makers and overseers
of subordinates.

He asserts a similar allegation against the

Bristol County District Attorney’s Office.
Count III alleges Retaliatory Treatment for Filing Section

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1983 claim.

This is a new claim alleging that while in custody

at the Bristol County House of Correction, he was put “in the
hole” for mental health issues, and remained there until he was
transferred to Barnstable County House of Correction.

In a

general fashion, he claims he was treated with neglect in
retaliation for filing a § 1983 action.

He also contends that he

was denied access to the law library so that he was unable to
respond to this Court’s directives to show good cause why his
claims should not be dismissed.

Further, he claims that in his

current location at the Worcester County House of Correction,
there is no law library.

He claims to have written grievances in

this matter, but his mail has been tampered with.
He seeks compensatory damages of no less than $2,000,000.00.
II.
A.

Discussion

Construction of the Notice of Appeal and Clarified Amended
Complaint as a Motion for Reconsideration and a Motion for
Leave to File the Clarified Amended Complaint
In light of Almeida’s request in the Notice of Appeal for

action by the District Court, and in light of the purported
clarified amended complaint, this Court is not certain that
Almeida actually intended to appeal the decision to the United
States Court of Appeals for the First Circuit (“First Circuit”)
(thereby obligating himself to payment of the $455.00 appellate
filing fees pursuant to the Prison Litigation Reform Act).
Rather, notwithstanding his characterization, it appears that

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Almeida seeks relief from this Court from the Order dismissing
claims against all defendants apart from Officer Rose.

Under

these circumstances, this Court will construe Almeida’s Notice of
Appeal and his Clarified Amended Complaint as both a Motion for
Reconsideration and a Motion to File the Clarified Amended
Complaint as the operative pleading in this action.

The merits

of these motions are addressed below.
B.

The Motion for Reconsideration
With respect to Almeida’s Motion for Reconsideration, this

Court finds that he has not demonstrated good cause for the
relief requested (i.e., for this Court to permit the claims to
proceed and to issue summonses for service on the defendants).
His proposed clarified amended complaint still suffers from the
Rule 8 pleading deficiencies.

He intermingles his claims of

deliberate indifference and negligence, and fails to set forth
the “who, what, where, when and why” type of information
necessary to set forth plausible claims, particularly with
respect to each of the John Doe defendants and Zarrora Inc.
More importantly, the legal impediments previously noted by
this Court still exist, and he has not provided any legal basis
for reconsideration of those issues.

For instance, his claims

against the City of Fall River/Fall River Police Department,
Joseph Zarrora, Zarrora Inc. and the District Attorney’s Office
(or its Chief) are based on constitutional violations stemming

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from the actions of its employees or subordinates.

He sets forth

no bona fide basis for direct liability, and thus his § 1983
claims are not plausible because there is no respondeat superior
liability for any of these defendants.

Moreover, this Court

previously discussed that the Fall River Police Department is not
a suable entity.
Next, Almeida simply ignores the doctrine of absolute
prosecutorial immunity to which ADA Nadeau is entitled.

He

provides no legal basis for this Court to consider that the
doctrine does not apply here.
Further, Almeida fails to address the legal impediment
discussed by this Court in the Memorandum and Order regarding the
immunity of Officer Rose and Elbaba based on their grand jury
testimony.
This is Almeida’s third attempt to set forth plausible
claims (i.e., in the original complaint, the amended complaint
(Docket No. 11) and the clarified amended complaint (Docket No.
18)).

Each time he has failed to do so.

Even if this Court were

to credit Almeida’s misunderstanding of the directives not to
reiterate the claims in the original complaint, his proposed
clarified amended complaint does not sufficiently clarify the
issues as Almeida suggests.
In the interests of judicial economy and for other
jurisprudential reasons, this Court need not permit Almeida to

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file amendments ad seriatim.

Accordingly, this Court will DENY

the Motion for Reconsideration of the dismissal of claims against
all defendants except for Officer Rose.
C.

The Motion for Leave to File the Clarified Amended Complaint
For all the reasons discussed above, this Court will DENY

leave to file the clarified amended complaint (Docket No. 18),
and will STRIKE the pleading.

Almeida’s amended complaint

(Docket No. 11) remains the operative pleading in this case.
D.

The New Claims of Retaliation and Lack of Law Library Access
With respect to Almeida’s claims regarding the lack of law

library access and the negligent treatment by prison staff at the
Bristol County House of Correction, these are entirely new claims
and not properly raised in the context of a Motion for
Reconsideration.

Moreover, these claims also do not comport with

the pleading requirements of Rule 8, in that Almeida fails to
provide the “who, what, when, and how” information necessary to
give the defendant(s) sufficient notice of the basis of the
claims in order to file a meaningful response.4

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Further, the

Prisoners have a constitutional right to access to the
courts. This requires prison authorities to assist inmates in
the filing of legal papers by providing adequate law libraries.
See Lewis v. Casey, 518 U.S. 343 (1996); Bounds v. Smith, 430
U.S. 817, 828(1977). In order to establish a violation of the
“right of access,” a plaintiff must allege “actual injury.” See
Lewis, 518 U.S. at 349. Actual injury means that a prisoner must
demonstrate that any alleged shortcomings in a prison legal
library or assistance program hindered his efforts to pursue a
legal claim involving direct or collateral attacks on sentences
or challenges to conditions of confinement. Id. at 349, 354-355.
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Bristol County House of Correction is not liable for § 1983
violations based on a respondeat superior theory of liability,
and, in any event, a prison is not a suable entity.

See Lynch v.

City Of Phila., 408 Fed. Appx. 527 (3d Pa. 2011)(a prison system
is not a suable entity under § 1983); Stratton v. City of Boston,
731 F. Supp. 42, 26 (D. Mass. 1989).
As an additional matter, Almeida asserts that he was treated
negligently.

Under these circumstances, this Court would decline

to exercise supplemental jurisdiction over a state law negligence
claim.

In short, given the posture of this case, permitting

Almeida to amend his complaint to add additional defendants (who
were not named as defendants in the “parties” section of the
clarified amended complaint or in the caption) with respect to
claims that are wholly unrelated to the claims stemming from the
robbery and his criminal prosecution, is not warranted.
Should Almeida wish to pursue his claims based on
retaliation and/or denial of access to the courts, he must file a
separate civil action and satisfy the filing fee requirements of
this Court (i.e., pay the $350.00 filing fee or seek a waiver

Any impairment of any other litigating capacity is an “incidental
(and perfectly constitutional) consequence[] of conviction and
incarceration.” Id. at 355. Examples of “actual injury” include
an allegation that a complaint was dismissed for failure to
satisfy a technical requirement which, because of deficiencies in
the prison’s legal assistance facilities, he could not have
known, or an allegation that a prisoner was unable to bring an
action to court due to the inadequacies in the law library. Id.
at 351.
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thereof by filing a Motion for Leave to Proceed in forma pauperis
accompanied by his certified prison account statement for the
six-month period preceding the filing of the complaint).5
E.

Clarification of the Current Posture of this Case
Since, as noted above, it is not entirely clear whether

Almeida wished to pursue his appeal (USCA No. 13-1028) before the
First Circuit, a copy of this Memorandum and Order shall be
transmitted to the First Circuit for whatever action it deems
appropriate.
This Court considers that, at this time, the only remaining
claims are those asserted against Officer Rose, as discussed in
the Memorandum and Order (Docket No. 14).

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Almeida still must

Almeida is advised that section 1997e(a) of Title 42
provides that “[n]o action shall be brought with respect to
prison conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). While
exhaustion of administrative remedies need not be pled in a
complaint, and while this is an affirmative defense, it is noted
that the failure of a prisoner to exhaust administrative remedies
could result in a dismissal of the prisoner’s civil action. In
that event, a prisoner still would be obligated to pay the
$350.00 filing fee. See Purkey v. Green, 28 Fed. Appx. 736, 746
(10th Cir. 2001)(“Section 1915(b) does not waive the filing fee,
however, nor does it condition payment of the filing fee on
success on the merits.... Notwithstanding the district court’s
dismissal of plaintiff’s action, he is still required to pay the
full filing fee to the district court.”); McGore v.
Wrigglesworth, 114 F.3d 601, 607 (6th Cir. 1997). “Even a
voluntary dismissal of a complaint or an appeal does not
eliminate a prisoner’s obligation to pay the required filing
fees.”
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effect service of process on Officer Rose before this case can
proceed further.

The prior Order directing the United States

Marshal Service to effect service if directed by Almeida to do
so, and to advance the costs of service, remains in effect.
Failure of Almeida to effect timely service may result in a
dismissal of all claims.
Almeida is PROHIBITED from filing any further amended or
clarified complaints in this action without leave of court and he
may seek leave only after the defendant has filed a response to
the amended complaint (Docket No. 11).
III.

Conclusion

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

Plaintiff’s Notice of Appeal (Docket No. 17) and his
Clarified Amended Complaint (Docket No. 18) are CONSTRUED
together as a Motion for Reconsideration of the dismissal of
claims pursuant to the Memorandum and Order (Docket No. 14),
and as a Motion for Leave to File a Clarified Amended
Complaint;

2.

Plaintiff’s Motion for Reconsideration (Docket Nos. 17 and
18) is DENIED;

3.

Plaintiff’s Motion for Leave to File a Clarified Amended
Complaint (Docket Nos. 17 and 18) is DENIED;

4.

Plaintiff’s Clarified Amended Complaint (Docket No. 18) is
STRICKEN; and the operative pleading is the Amended
Complaint (Docket No. 11);

5.

Plaintiff may not assert additional claims of retaliation
and/or the denial of access to the courts in this action;
should he wish to pursue those claims, he must file a
separate action and pay the $350.00 filing fee or seek a
waiver thereof in accordance with 28 U.S.C. § 1915;

6.

Plaintiff must serve Officer Rose in accordance with the
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Memorandum and Order (Docket No. 14); failing which, this
action will be dismissed;
7.

Plaintiff is PROHIBITED from filing any further amended or
clarified complaints in this action without leave of court
and he may seek leave only after the defendant has filed a
response to the amended complaint (Docket No. 11); and

8.

A Copy of this Memorandum and Order shall be TRANSMITTED to
the First Circuit for whatever action regarding USCA No. 131028 it deems appropriate in light of this Court’s
construction of the Notice of Appeal and Clarified Amended
Complaint as a Motion for Reconsideration of the dismissal
of claims as set forth in the Memorandum and Order (Docket
No. 14).

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

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