Lubin v. State of New Hampshire et al

Filing 5

Judge Joseph L. Tauro: ORDER entered. MEMORANDUM AND ORDER. Plaintiffs Motion to Proceed in forma pauperis is allowed. Within 35 days of the date of this Memorandum and Order, plaintiff shall show cause why this action should not be dismissed, or he shall file an Amended Complaint which cures the pleading deficiencies.(PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ARTHUR LUBIN,
Plaintiff,

)
)
)
v.
)
)
STATE OF NEW HAMPSHIRE, et al., )
Defendants.
)

C.A. No 12-12215-JLT

MEMORANDUM AND ORDER
TAURO, D.J.
For the reasons set forth below, plaintiff's motion to
proceed in forma pauperis is allowed, and within 35 days of the
date of this Memorandum and Order, plaintiff shall show cause why
this action should not be dismissed, or in the alternative, he
shall file an Amended Complaint curing the pleading deficiencies
noted herein.

No summonses shall issue pending further Order of

the Court.
BACKGROUND
Arthur Lubin, a resident of Jamaica, New York, filed his
self-prepared complaint accompanied by an Application to Proceed
Without Prepayment of Fees.

Named as defendants are the State of

New Hampshire and the City of Manchester, New Hampshire.

In the

complaint, plaintiff alleges that he is a former resident of
Manchester, New Hampshire.

He complains that he was subject to

“discrimination” because he was “falsely arrested,” “was refused
“a hearing regarding tenants,” had his property “towed from
parking without good cause,” and had his property “sold to pawn
shops.”

He contends that the Manchester District Court showed

significant bias towards him and that the court’s decision
affected bankruptcy and foreclosure process.

He seeks “relief as

the court deems just.”
DISCUSSION
I.

The Motion to Proceed In Forma Pauperis

Based on the information contained in Lubin's Application to
Proceed Without Prepayment of Fees, the Court finds that he is
without funds to pay the $350 filing fee.

The Court therefore

grants the motion to proceed in forma pauperis.
II.

Screening of the Complaint

When a plaintiff is permitted to proceed 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.

Section 1915 authorizes

federal courts to dismiss complaints sua sponte if the claims
therein lack an arguable basis in law or in fact, fail to state a
claim on which relief may be granted, or seek monetary relief
against a defendant who is immune from such relief.

See 28

U.S.C. § 1915(e)(2); Neitzke v. Williams, 490 U.S. 319, 325
(1989) Denton v. Hernandez, 504 U.S. 25, 32-33 (1992);
Gonzalez-Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir.
2001).
In conducting the preliminary screening, plaintiff’s pro se
pleadings are construed generously.

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See Hughes v. Rowe, 449 U.S.

5, 9 (1980);

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).

However, even under

a broad reading, plaintiff’s complaint is subject to dismissal
for the reasons set forth below.
III. Plaintiff’s Complaint is Subject to Dismissal
Plaintiff does not provide a viable legal basis for this
action.

Plaintiff complains that he has been subject to

discrimination.

However, it is unclear whether the defendant is

the State of New Hampshire, the City of Manchester or both.
Under Rule 8 of the Federal Rules of Civil Procedure, a
plaintiff must plead more than a mere allegation that the
defendant has harmed him [or her].

Ashcroft v. Iqbal, 556 U.S.

662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (detailed
factual allegations are not required under Rule 8, but a
complaint "demands more than an unadorned, the
defendant-unlawfully-harmed-me accusation" (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007)).

Moreover, "[d]istrict courts are not required to

conjure up questions never squarely presented to them or to
construct full blown claims from sentence fragments." Terrance v.
Cuyahoga County, 2005 WL 2491531 at *1 (N.D. Ohio

2005) citing

Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir.1985);
see also McDonald v. Hall, 610 F.2d 16, 19 (1st Cir.1979) (court

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is not required to "conjure up unpled allegations,"
notwithstanding duty to be less stringent with pro se
complaints). Such an exercise by the Court would " ‘require ...
[the courts] to explore exhaustively all potential claims of a
pro se plaintiff, ... [and] would ... transform the district
court from its legitimate advisory role to the improper role of
an advocate seeking out the strongest arguments and most
successful strategies for a party." Terrance, 2005 WL 2491531, at
*1, quoting Beaudett, 775 F.2d at 1278.
Moreover, Rule 8(a) requires a plaintiff to include in the
complaint, among other things, "a short and plain statement of
the claim showing that the pleader is entitled to relief."
R. Civ. P. 8(a)(2).

Fed.

"In a civil rights action ..., the complaint

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

Educadores Puertorriquenos en

Acción v. Hernandez, 367 F.3d 61, 68 (1st Cir. 2004).
For a civil rights action to fall within the rubric of the
federal civil rights statute, 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).

such action must be “taken under color of any statute, ordinance,
regulation, custom, or usage, or any State . . . .”

To the

extent Lubin seeks to bring a civil rights action against the

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State of New Hampshire, such a suit would be barred by the
Eleventh Amendment to the United States Constitution.

See Rosie

D. ex rel. John D. v. Swift, 310 F.3d 230, 234 (1st Cir. 2002)
(the Eleventh Amendment generally bars suits in federal court
against unconsenting states).

Although the City of Manchester

could be subject to a civil rights lawsuit, to establish such a
claim, the complaint must allege that the municipality had an
unconstitutional policy or custom.

Monell v. New York Dep't of

Soc. Services, 436 U.S. 658, 694 (1978).
IV.

Order to Show Cause

In light of the above, Lubin's complaint is subject to
dismissal in its entirety, pursuant to 28 U.S.C. § 1915(e)(2).
Accordingly, this action will be dismissed within 35 days of the
date of this Memorandum and Order unless Lubin demonstrates good
cause in writing why this action should not be dismissed, or
files an amended complaint that remedies the pleading
deficiencies of the original complaint.
Assuming Lubin files an amended complaint, it is likely that
a substantial part of the events or omissions giving rise to the
claims in the amended complaint would alleged to have occurred in
New Hampshire.

The proper venue for civil rights claims is

governed by the general venue statute, 28 U.S.C. § 1391.

Section

1391(b) provides that a civil law suit based on federal question
jurisdiction may be brought only in:

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(1) a judicial district where any defendant resides, if all
defendants reside in the same state, (2) a judicial district
in which a substantial part of the events or omissions
giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated, or
(3) a judicial district in which any defendant may be found,
if there is no district in which the action may otherwise be
brought.
28 U.S.C. § 1391(b).
Plaintiff is advised that any amended complaint filed may be
subject to transfer1 to a district where venue is proper (i.e.
the United States District Court for the District of New
Hampshire).

If Lubin elects to file an amended complaint, it

must comport with the pleading requirements of the Federal Rules
of Civil Procedure.

If no amended complaint is filed, this case

will be dismissed for the reasons stated above.
CONCLUSION
Based on the foregoing it is hereby ORDERED that:
1.

Plaintiff’s Motion to Proceed in forma pauperis is allowed;

2.

Within 35 days of the date of this Memorandum and Order,
plaintiff shall show cause why this action should not be
dismissed, or he shall file an Amended Complaint which cures
the pleading deficiencies.

SO ORDERED.
/s/ Joseph L. Tauro
JOSEPH L. TAURO
UNITED STATES DISTRICT JUDGE

December 11, 2012
DATE

1

Even where venue is proper, 28 U.S.C. § 1404(a) permits a
district court to transfer a case to another district where it
might have been brought when doing so would serve the convenience
of the parties or the interests of justice.
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