Almeida v. Fall River Police Station et al

Filing 6

Judge Patti B. Saris: MEMORANDUM AND ORDER entered: Plaintiff's Motion for Leave to Proceed in forma pauperis (Docket No. 2) is ALLOWED and the filing fee is assessed pursuant to 28 U.S.C. § 1915(b); Plaintiff's Motion for Appointment of Counsel (Docket No. 3) is DENIED; Plaintiff's Petition for Writ of Habeas Corpus Ad Testificandum (Docket No. 4) is DENIED; and This action shall be dismissed within 42 days of the date of this Memorandum and Order unless plaintiff demonstrates good cause in writing, including legal authority, why his claims should not be dismissed for the reasons stated herein. (PSSA, 1)

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

)
)
)
)
)
CIVIL ACTION NO. 12-11476-PBS
)
)
)
)

MEMORANDUM AND ORDER
August 13, 2012
SARIS, U.S. D.J.
I.

Introduction

On July 30, 2012 , plaintiff Jose A. Almeida (“Almeida”), an
inmate at the Bristol County House of Corrections in North
Dartmouth, Massachusetts, filed a self-prepared civil rights
complaint presumably under 42 U.S.C. § 1983.

He alleges that the

defendants used perjured testimony against him, and that he was
maliciously prosecuted for armed robbery.1
The list of defendants is not clear.

He names as

defendants: (1) the Bristol District Attorney’s office (“DA’s
Office”); (2) the Fall River Police Station (“FR Police”); and
(3) Zarrora, Inc. (“Zarrora”)2; however, Almeida also lists the

1

Almeida actually claims to have filed this Complaint in
mid-March, 2012. He claims that the Complaint was, for some
unknown reason, sent back to him, and he has documentation of
this. Compl. at 5. The Court’s CM/ECF docket does not reflect
any prior filing by Almeida.
2

Almeida spells the name of this defendant at least
three different ways throughout the complaint and accompanying

“Bristol County’s Government Agency’s [sic]” as a separate
governmental defendant.

He fails to set forth the basis for

including the Bristol County Government as a defendant, and,
presumably, this identification was meant to qualify that the
DA’s Office and the FR Police are agencies of Bristol County.
Further, he appears to name Joseph Zarrora, as the owner of
Zarrora, and John Rose (“Rose”), a police officer in the FR
Police.
Accompanying the Complaint, Almeida filed a Memorandum of
Law.

That document is not entirely coherent or legible.

From

what can be discerned from these pleadings, the crux of the
matter involves a criminal charge brought against Almeida for
armed robbery and prosecuted by the DA’s Office.

Compl. at

6.

On August 7, 2008, a man named Afif Elbaba (“Elbaba”), who
at the time was an employee of Zarrora, was robbed of over
$9,000.00.

Id. at

6, 8.

Almeida was arrested for armed robbery

on September 13, 2008, and was subsequently charged with the
crime, with bail set at $25,000.00, which he could not meet.
first trial ended on November 16, 2009 with a hung jury.
14.

His

Id. at

Following a second trial, Almeida was found not guilty and

memorandum (e.g., Zarrora, Zarroura, and Zarorra). For purposes
of this Memorandum and Order, this Court will refer to the
defendant as “Zarrora.” Almeida does not provide information as
to what kind of company Zarrora is, where it is located, or what
kind of service it provides or product it creates.
2

was released from custody on April 7, 2010.3

Id. at

8, 16.

As the basis for his allegations of illegal conduct on the
part of the defendants, Almeida focuses on some of the events
that occurred on the night of the alleged armed robbery, and
specifically on some of the interactions that occurred between
Elbaba and Officer Rose.

The series of events, as alleged by

Almeida, is as follows.
On August 7, 2008, Elbaba was robbed and called 911,
reporting the incident.

Id. at

9, 13.

In the 911 call, Elbaba

reported that the robber was an African-American who was wearing
a T-shirt, a yellow sweatshirt, and a red hat.

Id. at 9, 13.

Elbaba also reported that the robber got into a car, although he
did not know the color of the car.

Id.

At some point, a “Be On

the Look-Out” bulletin (“BOLO”) was issued locally for a 90’s
Nissan Sentra, possibly maroon or black, with someone named
Stephen Marion as the suspect.

Id. at

10.

Officer Rose responded to the robbery and met with Elbaba.
Almeida claims that Elbaba provided to Rose a description of the
robber that differed from the description he gave during his 911
call.

In this new description, Elbaba stated that the robber was

an African-American male, possibly in his early 20’s,
approximately 5’8" tall, with a medium build, brown eyes, brown,
bushy hair, and dark clothing.

3

Id. at 8.

Rose then showed a

Almeida apparently is in custody on other criminal

charges.
3

picture to Elbaba of someone who had previously worked for
Zarrora.

Id. at

11.

He then told Elbaba that he was going to

show him a picture of the person who robbed him.

He brought

Elbaba to the police station and showed him a black and white
photograph of Almeida -- a photo which was taken when Almeida had
previously been at the police station.

Id. at 11.

At that

point, Elbaba apparently identified Almeida as the robber.
Almeida claims that Rose also was responsible for issuing a
BOLO for a 1995 green four-door Subaru Legacy, with the license
plate number specified, identifying Almeida as the driver.
at 10.

Id.

This information was based on an interaction Rose had

with another police officer who had received the information from
two witnesses, Bill Caine (“Caine”) and Brian Stanko (“Stanko”).4
Almeida claims that, at the grand jury proceedings, several
pieces of information surfaced that support his claims for
malicious prosecution and perjured testimony.

First, he alleges

Zarrora is responsible for the perjured testimony of its
employee, Elbaba, who admitted to the grand jury that, when he
talked to the police, he was still feeling the effects of drug
Id. at 13.

use.

Additionally, Elbaba told the grand jury that

he had not actually made the call to 911 despite the fact that,
as Almeida claims, “[i]t was clearly him on the 911 phone
[call].”

Id.

4

These two witnesses later denied having relevant
information in this matter.
4

Second, Almeida claims that the FR Police Station is liable
for the perjured testimony of Rose, one of its officers.

He

alleges that Rose used improper techniques in his attempt to
obtain an identification of Almeida.

Id. at 11.

He asserts that

the investigation techniques were so improper that it crossed the
line into a malicious and deliberate misleading of Elbaba.
at 9.

Mem.

Almeida also claims that, during grand jury proceedings,

Elbaba stated he never actually gave his second description of
the robber to Rose, meaning Rose testified falsely when claiming
that Elbaba provided him with a differing description.
24.

Id. at

Further, Almeida contends that Rose withheld information

provided by Caine and Stanko that conflicted with the information
provided by Elbaba.

Id. at 11.

Third, Almeida claims that the DA’s Office is liable for
malicious prosecution conducted by the Assistant District
Attorney (“ADA”), named “Nadeau.”

Almeida claims that ADA Nadeau

knew about the false information presented both by Rose and
Elbaba and deliberately excluded from proceedings information
which would have impeached Rose’s testimony.

Id. at 7.

From what can be discerned, Almeida makes only two claims
under § 1983: perjury before the grand jury, and malicious
prosecution.

With respect to damages, Almeida is seeking

$50,000.00 from each defendant for each year he was in custody.5
Along with the Complaint, Almeida filed a Motion for Leave

5

He claims he was “in holding” for 19 months.
5

to Proceed in forma pauperis (Docket No. 2), a Motion to Appoint
Attorney (Docket No. 3), and a Petition for Writ of Habeas Corpus
Ad Testificandum (Docket No. 4).
DISCUSSION
I.

The Motion for Leave to Proceed In Forma Pauperis
Upon review of Almeida’s financial disclosures and prison

account statement, this Court finds that he lacks sufficient
funds to pay the filing fee for this civil action.

Accordingly,

his Motion for Leave to Proceed in forma pauperis (Docket No. 2)
will be ALLOWED.
Because Almeida is a prisoner, he is obligated to make
payments toward the $350.00 filing fee, pursuant to the Prison
Litigation Reform Act.
pauperis statute).

See 28 U.S.C. § 1915 (the in forma

Accordingly, it is hereby Ordered that:

A.

Almeida is assessed an initial partial filing fee of
$26.17, pursuant to 28 U.S.C.
§ 1915(b)(1)(A);6

B.

The remainder of the fee $323.83 is to be assessed and
collected in accordance with 28 U.S.C. § 1915(b)(2).

6

The initial partial assessment represents 20% of the
average monthly deposits in Almeida’s prison account as reflected
in his prison account statement, which does not cover a six-month
period. This calculation was manually prepared based on the
prison account statement submitted and is made without prejudice
to Almeida seeking reconsideration based on certified account
information in accordance with the formula set forth in 28 U.S.C.
§ 1915(b). Further, the initial partial assessment is made
regardless of whether or not Almeida currently has sufficient
funds in his prison account to pay. The in forma pauperis
statute requires the initial partial filing fee be assessed, but
collection to occur “when funds exist.” 28 U.S.C. § 1915(b)(1).
6

II.

The Complaint is Subject to Preliminary Screening
Because Almeida is proceeding in forma pauperis, his

complaint is subject to preliminary screening.

The Prison

Litigation Reform Act (“PLRA”) Title VIII of Pub.L. 104-134, 110
Stat. 1321-1375 (1996) contains several provisions which grant
this Court the authority to screen and dismiss prisoner
complaints.

See 28 U.S.C. § 1915 (proceedings in forma

pauperis);7 28 U.S.C. § 1915A (screening of suits against
governmental officers and entities).8
In connection with this preliminary screening, Almeida’s pro
se complaint is construed generously.
5, 9 (1980);

Hughes v. Rowe, 449 U.S.

Haines v. Kerner, 404 U.S. 519, 520 (1972);

Instituto de Educacion Universal Corp. v. U.S. Dept. of
Education, 209 F.3d 18, 23 (1st Cir. 2000).

Even under a broad

reading, however, this action is subject to dismissal in its

7

Section 1915 authorizes federal courts to dismiss
actions in which a plaintiff seeks to proceed without prepayment
of fees if the action lacks an arguable basis either in law or in
fact, Neitzke v. Williams, 490 U.S. 319, 325 (1989), or if the
action fails to state a claim on which relief may be granted or
seeks monetary relief against a defendant who is immune from such
relief. See 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii).
8

Section 1915A authorizes the Court to review prisoner
complaints in civil actions in which a prisoner seeks redress
from a governmental entity, or officers or employees of a
governmental entity, and to dismiss the action regardless of
whether or not the plaintiff has paid the filing fee, if the
complaint lacks an arguable basis in law or fact, fails to state
a claim, or seeks relief from a defendant immune from such
relief. 28 U.S.C. § 1915A.
7

entirety for the reasons discussed below.
III.

Failure to Comply With Fed. R. Civ. P. 8
Rule 8(a) requires a plaintiff to include in a complaint,

among other things, “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2).

This statement must “‘give the defendant fair notice of

what the ... claim is and the grounds upon which it rests,’” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration
in original)(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957));
see Rivera v. Rhode Island, 402 F.3d 27, 33 (1st Cir. 2005).

It

must afford the defendant(s) a “[‘] meaningful opportunity to
mount a defense.’”

Diaz–Rivera v. Rivera–Rodriguez, 311 F.3d

119, 123 (1st Cir. 2004)(quoting Rodriguez v. Doral Mortgage
Corp., 57 F.3d 1168, 1172 (1st Cir. 1995)); see Redondo–Borges v.
U.S. Dept. of Housing and Urban Dev., 421 F.3d 1, 5 (1st Cir.
2005).

“In a civil rights action as in any other action ..., the

complaint should at least set forth minimal facts as to who did
what to whom, when, where, and why.”

Educadores Puertorriquenos

en Action v. Hernandez, 367 F.3d 61, 68 (1st Cir.2004).

Although

“the requirements of Rule 8(a)(2) are minimal ... [,] ‘minimal
requirements are not tantamount to nonexistent requirements.’”
Id. (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st
Cir. 1988)).
Here, Almeida’s complaint is confusing, somewhat illegible,

8

and fails to set forth the sum total of the defendants.

As noted

above, he names three defendants (entities, instrumentalities, or
agencies) in the caption of his complaint, but then also asserts
claims against various individuals.
In light of the failure to set forth clearly each of his
claims against identifiable defendants, this action is subject to
dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Apart from the pleading deficiencies under Rule 8, there are
substantive legal deficiencies that bar all of his claims, as
discussed below.
IV.

The Fall River Police Station (or Department) is Not A
Suable Entity
The claims against FR Police (an entity or agency) is

subject to dismissal because the FR Police is not a suable
entity.

Any claims against the FR Police are not cognizable

because the FR Police has no legal existence or liability to suit
separate from its city.

See Henschel v. Worcester Police Dept.,

Worcester, Mass., 445 F.2d 624, 624 (1st Cir. 1971)(holding that
a police department is not a suable entity, stating: “[i]f a
Police Department may be successfully sued, it is the city which
will pay; the result is the same as suing the city....”);
Stratton v. City of Boston, 731 F. Supp. 42, 46 (D. Mass.
1989)(holding the Boston Police Department is not an independent
legal entity; it is a department within the City of Boston).

See

also Curran v. City of Boston, 777 F. Supp. 116, 120 (D. Mass.
9

1991).
Even if Almeida had named the City of Fall River as a
defendant, his claims still would not be cognizable because he
cannot hold the municipality liable under 42 U.S.C. § 1983 for
the alleged perjured testimony of Officer Rose.

See 42 U.S.C.

§ 1983 (“doctrine of respondeat superior cannot be invoked in
§ 1983 cases”); Monell v. Dep’t of Soc. Servs. of City of New
York, 463 U.S. 658, 691 (1978)(“[A] municipality cannot be held
liable under § 1983 on a respondeat superior theory.”).
V.

Claims Against Police Officer Rose
As noted above, Almeida has not identified clearly whether

he is asserting claims against Officer Rose as an individual.9
To the extent that his complaint can be construed to assert
§ 1983 claims against Rose, Almeida fails to set forth sufficient
underlying facts to state any plausible civil rights violations.
Almeida’s allegations were that Rose responded to the robbery and
took a description of the suspect from Elbaba that allegedly
differed from Elbaba’s description given in the 911 call.

Rose

showed a picture black and white photograph to Elbaba, who then
identified Almeida as the robber.

Almeida also contends that he

used improper techniques in order to obtain an identification.
Further, he alleges that Rose was responsible for putting out a

9

Rose is not named as a party in the caption of the
complaint, but is identified as a defendant in the attached Civil
Action Cover Sheet and Local Category Sheet.
10

BOLO on Almeida, based on information obtained through another
police officer.

Finally, Almeida claims that Rose perjured

himself during the grand jury proceedings.

All of the these

allegations are legal conclusions, without any underlying factual
support.

See Chiang v. Skeirik, 582 F.3d 238, 244 (1st Cir.

2009)(“As this court noted in Maldonado v. Fontanes, [568 F.3d
263, 268 (1st Cir. 2009)] ‘the tenet that a court must accept as
true all of the allegations contained in a complaint is
inapplicable to legal conclusions.

Threadbare recitals of the

elements of a cause of action, supported by mere conclusory
statements, do not suffice.’”)(brackets added; other citation
omitted).

Putting aside the perjury allegation for a moment, the

other contentions do not, standing alone, lead to the reasonable
inference of civil rights violations.

At best, negligence of

Rose might be inferred, but there are no underlying supporting
facts asserted to set forth a claim for unconstitutional conduct.
Thus, the claims against Rose suffer Rule 8 pleading
deficiencies.
Next, to the extent that Almeida’s claims culminate in his
assertion that Rose perjured himself before the grand jury,
Almeida’s § 1983 claim is not cognizable because Rose is entitled
to absolute immunity for his testimony.

Courts generally grant

police officers immunity from suits for damages claiming that a
police officer offered perjured testimony.

11

See Briscoe v. LaHue,

460 U.S. 325, 326 (1983)(rejecting the contention that government
officials who testify about the performance of their official
duties may be held liable under § 1983).10
VI.

Claims Against Elbaba
Almeida does not appear to assert any claims against Elbaba

based on his testimony.

Nevertheless, to the extent that Almeida

seeks to hold Elbaba liable for perjured testimony, he, too,
would be entitled to absolute immunity.

See Brisco, 460 U.S. at

335; Mitchell v. City of Boston, 130 F. Supp. 2d 201, 212 (D.
Mass. 2001)(“[I]mmunity should attach to conduct that is intended
to be protected by the grant of absolute immunity, namely, the
participation in the judicial process.”).
Moreover, Elbaba cannot be held liable under § 1983 for
alleged constitutional violations because there is no indication
that he was a state actor.

“Section 1983 supplies a private

right of action against a person who, under color of state law,

10

See also Williams v. City of Boston, 771 F. Supp. 2d
190, 203 (D. Mass. 2011)(where this Court noted the failure of
defendants to address to what extent immunity extended for
testimony given during pretrial matters, but noting that in
Briscoe and in the United States Court of Appeals for the First
Circuit’s decision in Kyricopoulos v. Town of Orleans, 967 F. 2d
14 (1st Cir. 1002), the Supreme Court and the appeals court
concluded that police officers were absolutely immune from suit
under § 1983 for giving perjured testimony at a criminal trial
and before a grand jury); Limone v. United States, 271 F. Supp.
2d 345, 366-67 (D. Mass. 2003)(distinguishing perjury committed
by police officers from perjury suborned by police officers,
noting that there exists some ambiguity as to whether Briscoe
grants absolute immunity to officers who suborn perjury), aff’d
in part sub nom, Limone v. Condon, 372 F3d 39 (1st Cir. 2004).
12

deprives another of rights secured by the Constitution or by
federal law.”

Santiago v. Puerto Rico, 655 F.3d 61, 68 (1st Cir.

Aug. 24, 2011)(quoting Redondo-Borges v. U.S. Dep’t of HUD, 421
F.3d 1, 7 (1st Cir. 2005))(emphasis added).

Accordingly, “[t]o

make out a viable section 1983 claim, a plaintiff must show both
that the conduct complained of transpired under color of state
law and that a deprivation of federally secured rights ensued.”
Id.
It is “[o]nly in rare circumstances” that private parties
can be viewed as state actors.

Estades-Negroni v. CPC Hosp. San

Juan Capestrano, 412 F.3d 1, 4 (1st Cir.

2005).

The United

States Court of Appeals for the First Circuit employs a
three-part test to determine whether a private party can be
characterized as a state actor: the state compulsion test, the
nexus/joint action test, and the public function test.

Id. at 5

citing Rockwell v. Cape Cod Hospital, 26 F.3d 254, 257 (1st Cir.
1994) and Perkins v. Londonderry Basketball Club, 196 F.3d 13,
18-21 (1st

Cir. 1999).

“Under the state compulsion test a

private party is fairly characterized as a state actor when the
state ‘has exercised coercive power or has provided such
significant encouragement, either overt or covert, that the
[challenged conduct] must in law be deemed to be that of the
State.’”

Estades-Negroni, 412 F.3d at 5 (quoting Blum v.

Yaretsky, 457 U.S. 991 (1982)).

Under the nexus/joint action

13

test, a private party can be characterized as a state actor
“where an examination of the totality of the circumstances
reveals that the state has ‘so far insinuated itself into a
position of interdependence with the [private party] that it was
a joint participant in [the challenged activity].’”

Id. (quoting

Bass v. Parkwood Hospital, 180 F.3d 234, 242 (5th Cir. 1999)).
Finally, under the public function test, a private party can be
characterized as a state actor “if the plaintiff establishes
that, in engaging in the challenged conduct, the private party
performed a public function that has been ‘traditionally the
exclusive prerogative of the State.’”
U.S. at 1005).

Id. (quoting Blum, 457

Here, Almeida fails to set forth any facts from

which it reasonably may be inferred that Elbaba was a state actor
under and one part of this three-part test.
Finally, to the extent that Almeida seeks to assert state
law claims against Elbaba, he has not pled any state law claims
in accordance with Rule 8.

In any event, in the absence of a

bona fide federal cause of action against Elbaba, this Court
would decline to exercise supplemental jurisdiction over any
state law claims.

Under 28 U.S.C. § 1367, a “district court may

decline to exercise supplemental jurisdiction” if “the district
court has dismissed all claims under which it has original
jurisdiction.”

28 U.S.C. § 1367(c); see Claudio-Gotay v. Becton

Dickinson Caribe, Ltd., 375 F.3d 99, 104 (1st Cir. 2004) (citing

14

Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir.
1995)(“As a general principle, the unfavorable disposition of a
plaintiff's federal claims at the early stages of a suit, well
before the commencement of trial, will trigger the dismissal
without prejudice of any supplemental state-law claims.”).
VI.

Claims Against Zarrora, Inc. and/or Joseph Zarrora
Similarly, Almeida fails to set forth the basis for

liability of either Zarrora, Inc. or its owner, Joseph Zarrora.
The only connection between these parties and the alleged
wrongful conduct is that Elbaba was Zarrora’s employee.

Almeida

presents no circumstances from which any direct liability for
civil rights violations reasonably could be inferred.

As such,

the claims are subject to dismissal for lack of respondeat
superior liability.

“It is well-established that ‘only those

individuals who participated in the conduct that deprived the
plaintiff of his rights can be held liable’” under § 1983.
Velez-Rivera v. Agosto-Alicea, 437 F.3d 145, 156 (1st Cir. 2006)
(quoting Cepero-Rivera v. Fagundo, 414 F.3d 124, 129 (1st Cir.
2005)).

In civil rights actions, “supervisors are not

automatically liable for the misconduct of those under their
command.

A plaintiff must show an affirmative link between the

subordinate [employee] and the supervisor, whether through direct
participation or through conduct that amounts to condonation or
tacit authorization.”

Id. at 156 (quoting Carmona v. Toledo, 215

15

F.3d 124, 132 (1st Cir. 2000)).

See Pinto v. Nettleship, 737

F.2d 130, 132 (1st Cir. 1984)(liability can only be imposed upon
officials who were involved personally in the deprivation of
constitutional rights).
Additionally, Almeida has not set forth any facts from which
these defendants could be considered state actors for § 1983
purposes.

See state action discussion Part V, supra.

Finally,

as with Elbaba, in the absence of any bona fide federal cause of
action, this Court would decline to exercise any state law claims
against Zarrora, Inc. and/or Joseph Zarrora (to the extent there
are any).
VII.

Claims Against the DA’s Office
For the same reasons noted above, to the extent that

Almeida’s claims against the DA’s office (the agency or
instrumentality of the state) is based on a theory of respondeat
liability for the alleged wrongful actions of ADA Nadeau, his
claims are not cognizable under § 1983.
As an additional matter, Almeida’s claims are not cognizable
because the DA’s Office, as an arm of the Commonwealth of
Massachusetts, is entitled to Eleventh Amendment sovereign
immunity.

See Regents of the Univ. of Cal. v. Doe, 519 U.S. 425,

429 (1997); Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985);
Alabama v. Pugh, 438 U.S. 781, 782 (1978)(per curiam); Hudson
Sav. Bank v. Austin, 479 F.3d 102, 105-06 (1st Cir. 2007); Miller

16

v. City of Boston, 297 F. Supp. 2d 361, 368-69 (D. Mass. 2003)
(office of the district attorney entitled to Eleventh Amendment
immunity).

Nothing in Almeida’s allegations reasonably could be

construed as presenting claims as to which the Commonwealth of
Massachusetts has waived its sovereign immunity to suit in
federal court.11
VIII.

Claims Against the Prosecutor (ADA Nadeau)
To the extent that Almeida seeks to assert claims for

malicious prosecution and/or due process violations (based on the
allegation that ADA Nadeau knew about the false information
presented both by Rose and Elbaba and deliberately excluded from
proceedings information which would have impeached Rose’s
testimony), his claims fail.

First, prosecutors have absolute

immunity in § 1983 suits for damages stemming from malicious
prosecution.

Meehan v. Town of Plymouth, 167 F.3d 85, 88

(Ҥ 1983 claim for malicious prosecution is barred where ... the
state’s tort law recognizes [as Massachusetts does] a malicious
prosecution cause of action”)(brackets added); Reid v. State of
New Hampshire, 56 F.3d 332, 336 (absolute immunity of prosecutor
was not forfeited because prosecutors withheld exculpatory
evidence).

See Imbler v. Pachtman, 424 U.S. 409, 430 (1976)

11

Additionally, to the extent that Almeida is suing the
“Bristol County’s Government Agency’s [sic]” as a separate
defendant, his claims are not cognizable because the Bristol
County Government would also be entitled to sovereign immunity.
17

(prosecutors are entitled to absolute immunity when they engage
in activities that are “intimately associated with the judicial
phase of the criminal process.”).12

The fact that Massachusetts

recognizes a cause of action for the tort of malicious
prosecution is fatal to a claim of constitutional violations
under § 1983 for malicious prosecution.

See Meehan, 167 F.3d at

88; Reid, 56 F.3d at 336.13
VIII.

Order to Show Cause
For all of the reasons set forth above, Almeida’s claims are

subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
and/or (iii) and § 1915A.

Accordingly, this action shall be

dismissed within 42 days of the date of this Memorandum and Order
unless Almeida demonstrates good cause in writing, including
legal authority, why his claims should not be dismissed for the

12

Prosecutors have been granted absolute immunity for
appearing before a judge and presenting evidence in support of a
search warrant, Burns v. Reed, 500 U.S. 478, 492 (1991), for
their conduct before grand juries, see Lucien v. Preiner, 967
F.2d 1166, 1167 (7th Cir. 1992), cert. denied, 506 U.S. 893
(1992), for the knowing use of false testimony and the deliberate
suppression of exculpatory evidence at trial, Imbler, 424 U.S. at
431 & n.34, for preparing and filing a motion for an arrest
warrant, Kalina v. Fletcher, 522 U.S. 118, 129 (1997), and for
failing to investigate adequately prior to filing charges,
failing to turn over exculpatory material to the defense, and
gathering additional information during the pendency of criminal
proceedings, Broam v. Bogan, 320 F.3d 1023, 1031-33 (9th Cir.
2003).
13

To the extent that Almeida asserts state tort claims of
malicious prosecution against any of the Defendants, this Court
declines to exercise supplemental jurisdiction over such claims.
18

reasons stated herein.
seven (7) pages.

Any Show Cause Response is limited to

Almeida should not reiterate his claims

contained in his complaint or supporting memorandum of law, but
should address specifically the legal deficiencies noted herein
(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).
Failure to comply with this directive will result in a
dismissal of this action on the merits.
IX.

The Motion for Appointment of Counsel
Under 28 U.S.C. § 1915(e)(1), the court “may request an

attorney to represent any person unable to afford counsel.”
U.S.C. § 1915(e)(1).

28

However, a civil plaintiff lacks a

constitutional right to free counsel.
F.2d 15, 23 (1st Cir. 1991).

DesRosiers v. Moran, 949

In order to qualify for appointment

of counsel, a party must be indigent and exceptional
circumstances must exist such that denial of counsel will result
in fundamental unfairness impinging on the party's due process
rights.

Id.

To determine whether exceptional circumstances

sufficient to warrant the appointment of counsel are present in a
case, the court must examine the total situation, focusing on the
merits of the case, the complexity of the legal issues, and the
litigant's ability to represent him or herself.

19

Id. at 24.

Here, notwithstanding that Almeida may not be able to afford
to retain his own counsel, for the reasons noted above, the
merits of Almeida’s claims are dubious.

Thus, the expenditure of

the scarce pro bono resources of the Court is not warranted.
Accordingly, Almeida’s Motion for Appointment of Counsel
(Docket No. 3) is DENIED.
X.

The Petition for Writ of Habeas Corpus Ad Testificandum
Almeida seeks a writ of habeas corpus should this Court need

to hear from him.

For the reasons stated above, no hearing is

necessary at this time.

Accordingly, Almeida’s Petition for Writ

of Habeas Corpus Ad Testificandum (Docket No. 4) is DENIED.
CONCLUSION
Based on the foregoing, it is hereby ORDERED that:
1.

Plaintiff’s Motion for Leave to Proceed in forma pauperis
(Docket No. 2) is ALLOWED and the filing fee is assessed
pursuant to 28 U.S.C. § 1915(b);

2.

Plaintiff’s Motion for Appointment of Counsel (Docket No. 3)
is DENIED;

3.

Plaintiff’s Petition for Writ of Habeas Corpus Ad
Testificandum (Docket No. 4) is DENIED; and

4.

This action shall be dismissed within 42 days of the date of
this Memorandum and Order unless plaintiff demonstrates good
cause in writing, including legal authority, why his claims
should not be dismissed for the reasons stated herein.

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

20