Myers v. Davenport et al

Filing 6

Chief Judge Patti B. Saris: ORDER entered denying 4 Motion to supplement; granting 2 Motion for Leave to Proceed in forma pauperis; denying 3 Motion to Appoint Counsel. Plaintiff shall, within 35 days of the date of this Memorandum and Order, show cause why this action should not be dismissed, or she shall file an Amended Complaint which cures the pleading deficiencies. No summonses shall issue pending further Order of the Court. (PSSA, 3)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
LINDA MYERS,
Plaintiff,
v.
JOHN DAVENPORT and MEGAMILLIONS,
Defendants.

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C.A. No.

13-13149-PBS

MEMORANDUM AND ORDER
April 14, 2014
SARIS, C.D.J.
For the reasons set forth below, the Court allows the Motion
for Leave to Proceed in forma pauperis is allowed; (Docket No.
2); denies the Motion for Appointment of Pro Bono Counsel (Docket
No. 3); and denies the Motion to Supplement (Docket No. 4).
Plaintiff shall show cause why this action should not be
dismissed, or she shall file an Amended Complaint which cures the
pleading deficiencies noted below.
I.

Background

Plaintiff Linda Myers, a pro se litigant with a mailing
address in South Easton, Massachusetts, filed her self-prepared
complaint accompanied by an Application to Proceed Without
Prepayment of Fees and a Motion for Appointment of Counsel.
Docket.

Myers also filed a Motion to Supplement.

See

See Docket No.

4.
Myers’ complaint consists of one typewritten page and one
handwritten page and is accompanied by eighteen pages of
documents including her resume, emails, and sweepstakes
correspondence. See Docket No. 1.

In the Motion to Supplement,

plaintiff states that she is also known as Linda Myers Brown and
that she “was under great duress at the time of filing the
original complaint.”

See Docket No. 4.

The allegations

contained in the complaint and motion to supplement are
sprawling, repetitive and not entirely coherent.

Myers suit is

brought against the following two defendants: (1) John Davenport,
identified in the complaint as a federal agent; and (2) the
lottery game Mega Millions.

Myers states that she won over 200

million dollars in various lotteries and that “Obama and the
banks wanted [Myers] to work with Davenport.

Complaint, p. 1.

Myers alleges that she has been working with defendant Davenport
and has a sealed contract delivery for turning in Jamaican
Scammers.

Id.

She complains, among other things, that she has

“been harassed and stalked and stolen from by [her] Business
associates who are getting 1/2 the money.”

Id.

Myers states that she believes the lottery entry forms might
have been sent to her because of her “being in radio, tv and
entertainment business and owner of Nature Stone Art Gallery and
Lillemoor Enterprises. Id. at p. 1 - 2.

In her Motion to

Supplement, plaintiff explains that her art gallery and trailer
home business [Lillemoor Enterprises] were destroyed by fire in
2012 and that she has been a party to several cases, one of which
was appealed to the Supreme Court in Washington, D.C.
No. 4.

See Docket

The Court’s records indicate that plaintiff was a party

in two cases in this federal district court.

See Myers v.

Harvard University, C.A. No. 92-11687-RCL (stipulation of
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dismissal); Myers v. Brown, et al., C.A. No. 96-10266-REK
(voluntary dismissal).
II.
A.

Discussion

The Motion for Leave to Proceed In Forma Pauperis
In her Application to Proceed Without Prepayment of Fees,

Myers states that she has no funds and owns no property.

She

states that she and her husband are disabled and each receive
social security benefits.
employed.

Myers also states that she is not

However, in response to Question 3 on the Application,

she indicates that she has received an unspecified amount of
money from business, profession, other self-employment, gifts or
inheritances.

Despite the incomplete financial disclosures, the

Court finds that she is without funds to pay the filing fee.
Accordingly, the Application is granted.
B.

Screening of the Complaint
Section 1915 of title 28 requires a federal court to dismiss

an action brought thereunder if the court determines that the
action “fails to state a claim on which relief may be granted.”
28 U.S.C. § 1915(e)(2)(B)(ii).

Section 1915 also requires

dismissal if the court is satisfied that the action is
“frivolous.” 28 U.S.C. § 1915(e)(2)(B)(I).

A claim “is frivolous

where it lacks an arguable basis either in law or fact.”

Neitzke

v. Williams, 490 U.S. 319, 325 (1989).
A sua sponte dismissal of a complaint for failure to state a
claim is warranted where “it is crystal clear that the plaintiff
cannot prevail and that amending the complaint would be futile.”
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Chute v. Walker, 281 F.3d 314, 319 (1st Cir.2002) citing
Gonzalez–Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir.
2001).

The Supreme Court has also held that courts may dismiss

in forma pauperis complaints sua sponte without notice if the
claim is based on an “indisputably meritless legal theory” or
“factual contentions [that] are clearly baseless.”

Denton v.

Hernandez, 504 U.S. 25, 32-33 (1992); Forte v. Sullivan, 935 F.2d
1, 3 (1st Cir. 1991)(quoting Neitzke, 490 U.S. at 327).
In connection with the preliminary screening, Myers’ pro se
pleadings are construed generously. Haines v. Kerner, 404 U.S.
519, 520 (1972); Rodi v. New Eng. Sch. of Law, 389 F.3d 5, 13
(1st Cir. 2004).

However, even under a liberal construction, her

claims under are subject to dismissal for the reasons discussed
below.
C.

The Complaint and Supplement are Subject to Dismissal
Myers does not provide a viable legal basis for this action.

Rule 8 of the Federal Rules of Civil Procedure provides, in
relevant part, that “[a] pleading that states a claim for relief
must contain ... a short and plain statement of the claim showing
that the pleader is entitled to relief ....”
8(a)(2).

Fed. R. Civ. P.

The statement must “give the defendant fair notice of

what the plaintiff’s claim is and the grounds upon which it
rests.”

Phelps v. Local 0222, No. 09-11218, 2010 WL 3342031, at

*5 (D. Mass. 2010) (quoting Swierkiewicz v. Sorema N.A., 534 U.S.
506, 512 (quotations and citations omitted)).
While the “First Circuit holds a pro se litigant to a
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standard of pleading less stringent than that for lawyers,” “this
cannot be taken to mean that pro se complaints are held to no
standard at all.”
(D. Mass. 1985).

Green v. Massachusetts, 108 F.R.D. 217, 218
Thus, “the requirements of Rule 8(a)(2) are

minimal – but minimal requirements are not tantamount to
nonexistent requirements.”

Educadores Puertorriquenos en Accion

v. Hernandez, 367 F.3d 61, 68 (1st Cir. 2004) (internal quotation
omitted).
Further, under Rule 8, a plaintiff must plead more than a
mere allegation that the defendants have harmed her.

Ashcroft v.

Iqbal, 556 U.S. 662, 677 (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
(2007)).

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

2009) (“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”)
(internal citation and quotation marks omitted).
Here, Myers’ complaint materially fails to comply with Rule
8.

Myers Plaintiffs' allegations are generally confusing, and it

is impossible to discern what claims are being made against which
defendant and what facts support those claims.
In sum, this action cannot proceed as pled because of the
various legal impediments noted above.

In light of this, the

Court considers whether appointment of pro bono counsel is
justified in this case.
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D.

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.” 28
U.S.C. § 1915(e)(1); however, a civil plaintiff lacks a
constitutional right to free counsel.
F.2d 15, 23 (1st Cir. 1991).

DesRosiers v. Moran, 949

Because this action appears to be

subject to dismissal, the motion is denied.
E.

Order to File a Response and/or an Amended Complaint
In light of the above, this action shall be dismissed within

thirty-five (35) days from the date of this Memorandum and Order
unless Myers files a show cause response and/or an "Amended
Complaint" that comports with the pleading requirements of the
Federal Rules of Civil Procedure.

Any Amended Complaint must set

forth, in a coherent fashion, each cause of action (i.e., legal
theory of liability) against each Defendant, along with a brief
statement of the underlying facts to support each claim.
This is not an invitation for Myers to tender still another
bulky set of documents.

If she files an amended complaint and/or

show cause response, the Court will review the submission
(without reference to any allegations in previously-filed
documents) and determine whether the plaintiff has set forth a
claim upon which relief may be granted.

Summons will not issue

until this review is complete.
Failure to comply with these directives or to provide a
sufficient show cause response or Amended Complaint will result
in dismissal of this action.
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III.

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;

2.

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

3.

Plaintiff’s Motion to Supplement (Docket No. 4) is DENIED;

4.

Plaintiff shall, within 35 days of the date of this
Memorandum and Order, show cause why this action should not
be dismissed, or she shall file an Amended Complaint which
cures the pleading deficiencies; and

5.

No summonses shall issue pending further Order of the Court.

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

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