Harris v. Amy Lowell Apartments Landlord

Filing 5

Chief Judge Patti B. Saris: MEMORANDUM AND ORDER entered 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 he shall file an Amended Complaint which cures the pleading deficiencies. No summonses shall issue pending further Order of the Court (PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
KEVIN HARRIS,

)
)
)
)
)
)
)

Plaintiff,
v.
AMY LOWELL APARTMENTS,
Defendant.

C.A. No.

14-12640-PBS

MEMORANDUM AND ORDER
July 8, 2014
SARIS, C.D.J.
For the reasons set forth below, the Court allows the Motion
for Leave to Proceed in forma pauperis; (Docket No. 2); denies
the Motion for Appointment of Counsel (Docket No. 3); and directs
plaintiff to show cause why this action should not be dismissed,
or he shall file an Amended Complaint which cures the pleading
deficiencies noted below.
I.

Background

Plaintiff Kevin Harris, a former tenant in the defendant’s
subsidized residential housing development in Boston, filed his
self-prepared complaint against his former landlord.
No. 1.

See Docket

With his complaint, Harris filed an Application to

Proceed Without Prepayment of Fees and a Motion for Appointment
of Counsel.

See Docket.

Harris’ complaint consists of one (1) typewritten page and
is accompanied by eight-three (83) pages of exhibits, including
copies of docket sheets and opinions from state court litigation.
See Docket No. 1.

As best can be gleaned from the opinion of the

Massachusetts Appeals Court [Kevin Harris v. Amy Lowell

Apartments, 2013-P-0042], Harris appealed from a Superior Court
judgment dismissing his claims against the defendant landlord for
his 2011 eviction.

Harris filed an application for Further

Appellate Review, FAR-22299, which was denied on June 10, 2014.
Harris alleges that his civil rights were violated when the
defendant used procedures to “Wrongfully Evict him.”

Harris

explains that he seeks review by the federal court because of
corruption and judicial misconduct in the Massachusetts state
court system.
II.
A.

Discussion

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

Harris states that he is not employed, has no funds and owns no
property.

He states that he receives monthly social security

benefits and has partial custody of two minor children.

On these

financial disclosures, the Court finds that he is without funds
to pay the filing fee.
B.

Accordingly, the Application is granted.

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.”
v. Williams, 490 U.S. 319, 325 (1989).
2

Neitzke

In connection with the preliminary screening, Harris’ 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, his

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

The Complaint is Subject to Dismissal
Harris does not provide a viable legal basis for this

action.

To the extent that he challenges the integrity of the

state courts' proceedings in which he was recently involved and
allege that his federal and state rights were violated by
procedural or substantive errors procured by the defendant, this
federal district court has no jurisdiction to entertain such
claims.

Plaintiff's challenges to these final judgments in state

court are barred by the Rooker–Feldman doctrine. See Rooker v.
Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362
(1923); District of Columbia Court of Appeals v. Feldman, 460
U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983).
The Rooker–Feldman doctrine precludes a litigant who was
unsuccessful in state court from seeking reversal of that
decision in federal court once the state court litigation is
completed.

See Coggeshall v. Mass. Bd. of Reg'n of

Psychologists, 604 F.3d 658, 663 (1st Cir. 2010) (citing Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 291
(2005)).
Application of the Rooker–Feldman doctrine is appropriate
3

where: "The losing party in state court filed suit in a U.S.
District Court after the state proceedings ended, complaining of
an injury caused by the state-court judgment and seeking
federal-court review and rejection of that judgment." Skinner v.
Switzer, ––– U.S. –––, –––, 131 S.Ct. 1289, 1297 (2011).

To the

extent plaintiff seeks to reverse one of the state court
judgments referenced in his complaint, this court is without
jurisdiction.
A federal court is a court of limited jurisdiction, and may
adjudicate only those cases authorized by the Constitution and by
Congress. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,
377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994).

Here, the

Court is unable to determine a jurisdictional basis for this
action.

See McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir. 2004);

Fed. R. Civ. P. 12(h)(3) ("If the court determines ... it lacks
subject matter jurisdiction, the court must dismiss the
action.").

See also In re Recticel Foam Corp., 859 F.2d 1000,

1002 (1st Cir. 1988) ("It is too elementary to warrant citation
of authority that a court has an obligation to inquire sua sponte
into its subject matter jurisdiction, and to proceed no further
if such jurisdiction is wanting.").
To this end, 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.

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
4

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)).

If the court, viewing the allegations in the light

most favorable to the plaintiff, finds insufficient allegations
in the pleadings, the court will lack subject matter
jurisdiction.1
Even if this Court were not barred by the Rooker–Feldman
doctrine from hearing plaintiff's claims of defendant's wrongful
eviction, such allegations fail to state a cognizable federal
claim pursuant to the Civil Rights Act, 42 U.S.C. § 1983.

To the

extent Harris brings suit against the state court judges, a
judicial officer in the performance of his or her duties has
absolute immunity from suit.

Mireles v. Waco, 502 U.S. 9, 12,

112 S.Ct. 286, 116 L.Ed.2d 9 (1991).

“‘Absolute judicial

immunity protects judges from ‘civil liability for any normal and
routine judicial act,' except those taken in the ‘clear absence
of all jurisdiction.'"
(D.N.H. 2011) quoting

Goldblatt v. Geiger, 2011 WL 1362119
Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir.

1

The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331.
1332, confer "federal question" and "diversity" jurisdiction,
respectively. For diversity jurisdiction pursuant to 28 U.S.C. §
1332, each plaintiff must be diverse from each defendant, and the
amount in controversy must exceed $75,000. For federal question
jurisdiction pursuant to 28 U.S.C. § 1331, the complaint must
either (1) arise under a federal law or the United States
Constitution, (2) allege a "case or controversy" within the
meaning of Article III, section 2, or (3) be authorized by a
jurisdiction statute. Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct.
691, 699–700, 7 L.Ed.2d 663 (1962).
5

1989) (citing Stump v. Sparkman, 435 U.S. 349, 357 (1978)).
"Judicial immunity from claims for damages ‘applies no matter how
erroneous the act may have been, how injurious its consequences,
how informal the proceeding, or how malicious the motive.'"
Goldblatt, 2011 WL 1362119 at *6 quoting Cok, 876 F.2d at 2.
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.
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 Harris 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 Harris to tender still another
6

bulky set of documents.

If he 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.
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 shall, within 35 days of the date of this
Memorandum and Order, show cause why this action should not
be dismissed, or he 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

7