Awbrey v. DiGangi

Filing 13

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER. In accordance with this Court's order dated January 2, 2014, and the plaintiff not having shown good cause why this case should not be dismissed, it is ORDERED that the within action be and it is hereby DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and (iii). (PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
Brian J. Awbrey,

)
)
Plaintiff,
)
)
)
v.
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Peter DiGangi, individually and )
in his capacity as Justice of
)
the Probate and Family Court of )
Middlesex County,
)
)
Defendant.
)

CIVIL ACTION No.
13-13096-NMG

MEMORANDUM AND ORDER
GORTON, J.
On November 22, 2013, Brian J. Awbrey ("Awbrey") filed a
self-prepared civil rights complaint against Peter DiGangi
("Judge DiGangi"), individually and in his capacity as Justice of
the Middlesex County Probate and Family Court.

Awbrey asserted

claims pursuant to, among other things, Title II and Title III of
the Americans with Disabilities Act ("ADA") and 42 U.S.C. § 1983
in connection with his child custody case in the Middlesex County
Probate and Family Court.

He alleges discrimination based on his

disability, socioeconomic status, gender and age.

He further

alleges that Judge DiGangi denied his written requests for
disability accommodation during the course of numerous court
appearances.
By Order dated January 2, 2014, Awbrey was permitted to
proceed in forma pauperis and was advised that his complaint was
subject to dismissal.

See Docket No. 4.

The January order

advised Awbrey that: (1) absolute judicial immunity bars his ADA
(Titles II and III), § 1983 and state tort claims for monetary
damages against Judge DiGangi in his individual capacity; (2)
sovereign immunity bars his § 1983 claims against Judge DiGangi
in his official capacity; (3) the MTCA provides for immunity from
monetary damages for state torts committed by a public employee;
(4) Title II claims against Judge DiGangi in his official
capacity are not cognizable because Judge DiGangi is not a
"public entity" under the statute; and (4) Title III claims
against Judge DiGangi for monetary damages are not cognizable
because there is no private cause of action for monetary damages.
Id.
On February 18, 2014, Awbrey was granted an extension of
time to file a show cause response.

See Docket No. 9.

Now

before the Court is Awbrey’s response to order to show cause. See
Docket No. 12.

Awbrey filed a ten-page reply arguing, with

reference to legal support, that this action should not be
dismissed for the reasons outlined in the Court’s January 2014
Memorandum and Order.
After closely reviewing Awbrey’s reply, the Court finds that
he failed to demonstrate good cause why this action should not be
dismissed.

ACCORDINGLY, in accordance with this Court's order

dated January 2, 2014, and the plaintiff not having shown good
cause why this case should not be dismissed, it is ORDERED that

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the within action be and it is hereby DISMISSED pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(ii) and (iii).
So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated March 16, 2015

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