Lozano v. Suffolk Superior Court et al

Filing 57

Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS. Copy mailed to Mario R. Lozano. (Pezzarossi, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
MARIO R. LOZANO,
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Plaintiff,
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v.
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SUFFOLK SUPERIOR COURT,
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TRANSCRIPTION SERVICES
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ADMINISTRATION, WELLS FARGO
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BANK, N.A., and FREDDIE MAC,
)
)
Defendants.
)
_______________________________________)

Civil No.
14-13123-FDS

MEMORANDUM AND ORDER ON
DEFENDANTS’ MOTIONS TO DISMISS
SAYLOR, J.
This is an action arising from a homeowner’s default on a home loan and the resulting
mortgage foreclosure. Plaintiff Mario R. Lozano, proceeding pro se, alleges that the defendants
violated his civil rights and Massachusetts state law by conspiring to tamper with or otherwise
alter certain transcripts of state court proceedings.
The amended complaint asserts various causes of action, including constitutional and
civil rights violations (Counts One, Three, Four, and Five); federal and state criminal violations
(Count Two); and Massachusetts common-law claims for intentional infliction of emotional
distress (Count Six), intentional infliction of mental anguish (Count Seven), and unjust
enrichment (Count Eight). The remaining defendants in this case are Wells Fargo Bank, N.A.
and the Federal Home Loan Mortgage Corporation.
For the following reasons, defendants’ motion to dismiss will be granted.

I.

Background
A.

Factual Background

The facts are set forth as alleged in the amended complaint.
In 2004, Mario Lozano obtained a loan and granted a mortgage on a property at 54
Bicknell Street in Dorchester, Massachusetts. (Am. Compl. 28). The mortgage was
subsequently assigned to defendant Wells Fargo. At some point in 2008 or 2009, Lozano
became unable make the full monthly payments due on the mortgage and the loan went into
default. The complaint alleges that although the loan was in default, Wells Fargo did not attempt
to foreclose on the mortgage for a period of several years. (Am. Compl. 45). According to the
complaint, Lozano continued to manage and improve the property following his default, and
those improvements resulted in an increase in the property’s value. (Id.). In 2012, Wells Fargo
initiated foreclosure proceedings. Lozano then filed a civil action in Suffolk Superior Court
challenging the foreclosure.
Lozano claims that during the state court litigation, court transcripts were altered and
docket entries falsified so as to provide a false basis for court orders in favor of Wells Fargo and
Freddie Mac. (Id. at 3, 9). 1
After the conclusion of the Superior Court action, Lozano filed a complaint with this
Court against defendants Suffolk Superior Court, the Office of Transcription Services, Wells
Fargo Bank, and Freddie Mac. The complaint alleges that defendants violated Lozano’s civil
rights by conspiring to alter transcripts of Superior Court hearings in order to facilitate obtaining
several illegal court orders and judgments against him.

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The complaint does not indicate the outcome of the state court litigation, but it is apparent that it was not
favorable to Lozano.

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B.

Procedural Background

On July 25, 2014, Lozano filed the original complaint in this action against named
defendants Suffolk Superior Court, the Office of Transcription Services, Wells Fargo Bank, and
Freddie Mac. On March 26, 2015, the Court dismissed the claims against Suffolk Superior Court
and the Office of Transcription Services for lack of jurisdiction. The Court permitted Lozano to
file an amended complaint, which he filed on June 1, 2015.
The amended complaint asserts eight counts against defendants Wells Fargo and Freddie
Mac. Count One asserts violations of 42 U.S.C. § 1985(2) and §1985(3). Count Two asserts
violations of federal and state criminal statutes prohibiting tampering with evidence. Counts
Three and Four assert general claims under the Due Process and Equal Protection Clauses of the
Fourteenth Amendment. Count Five asserts an additional civil rights claim under 42 U.S.C. §
1983. Count Six asserts a state law tort claim for intentional infliction of emotional distress.
Count Seven asserts a separate claim for intentional infliction of mental anguish. Count Eight
asserts a claim for unjust enrichment.
The amended complaint also purports to assert claims against Suffolk Superior Court and
the “Transcription Services Administration,” presumably the Massachusetts Office of
Transcription Services.
On June 18, 2015, Wells Fargo and Freddie Mac jointly moved to dismiss all claims
against them under Fed. R. Civ. P. 12(b)(6). Lozano filed an opposition to defendants’ motion
on June 30, 2015.
II.

Legal Standard
On a motion to dismiss, the Court “must assume the truth of all well-plead[ed] facts and

give . . . plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness

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Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.
1999)). To survive a motion to dismiss, the complaint must state a claim that is plausible on its
face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, “[f]actual allegations must
be enough to raise a right to relief above the speculative level, . . . on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (citations omitted).
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if the complaint fails to set
forth “factual allegations, either direct or inferential, respecting each material element necessary
to sustain recovery under some actionable legal theory.” Gagliardi v. Sullivan, 513 F.3d 301,
305 (1st Cir. 2008) (quoting Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1,
6 (1st Cir. 2005)).
A document filed by a pro se party “is to be liberally construed, and a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted
by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)) (internal quotation marks omitted); see also Fed. R. Civ. P. 8(e) (“Pleadings
must be construed so as to do justice.”).
III.

Analysis
A.

42 U.S.C. § 1985(2) and §1985(3) (Count One)

Count One of the amended complaint actually alleges two similar but separate causes of
action under 42 U.S.C. § 1985(2) and 42 U.S.C. § 1985(3). Section 1985(2) concerns access to
state courts, creating a cause of action where “two or more persons conspire for the purpose of
impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any

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State or Territory, with intent to deny to any citizen the equal protection of the laws.” 42 U.S.C.
§ 1985(2). Similarly, a claim under § 1985(3) requires proof of both a conspiracy and “a
conspiratorial purpose to deprive the plaintiff of the equal protection of the laws.” Perez–
Sanchez v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st Cir. 2008) (citing Aulson v. Blanchard, 83
F.3d 1, 3 (1st Cir.1996)). 2
Both § 1985(2) and § 1985(3) require the complaint to plead that a race or class-based
discriminatory motive lies behind the alleged conspirators’ actions. See Kush v. Rutledge, 460
U.S. 719, 725–26 (1983) (citing Griffin v. Breckenridge, 403 U.S. 88, 91 (1971)).
Defendants contend that the amended complaint fails to meet this requirement. It is true
that the complaint fails to allege any facts in Count One establishing that the plaintiff is a
member of a protected class or has suffered class-based discrimination. Yet in Count Five, the
complaint does allege that “all . . . parties involved are Caucasians” and that defendants “utilized
the solidarity of [r]ace and [e]thnicity” in violating Lozano’s civil rights. (Am. Comp. 35).
Keeping in mind the lower standards applied to pro se complaints under Erickson, this Court
finds that the complaint, though disorganized, does allege both that Lozano is a member of a
protected class and that defendants’ actions were motivated by racial animus.
However, even under Erickson, the complaint fails to allege with specificity facts that, if
true, would support a finding of a conspiracy. Although the general thrust of the complaint
alleges that Wells Fargo and Freddie Mac conspired with the Suffolk Superior Court and the
Office of Transcription Services to alter transcripts in the state court case between the parties,
Am. Compl. 34, those allegations are conclusory and the Court is not required to credit them.
See Twombly, 550 U.S. at 555 (plaintiff's obligation under Fed. R. Civ. P. 8(a) to provide the

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A claim under § 1985(3) also requires proof of “an overt act in furtherance of the conspiracy” and “injury
to person or property, or a deprivation of a constitutionally protected right.” Perez–Sanchez, 531 F.3d at 107.

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grounds of his claim “requires more than labels and conclusions”); Dallas v. Holmes, 137 Fed.
Appx. 746, 752 (6th Cir. 2005) (per curiam) (upholding dismissal under 28 U.S.C. §
1915(e)(2)(B) of claims under § 1983 that private individuals conspired with law enforcement to
perpetrate malicious prosecution: “Other than general allegations of conspiracy to cause and
influence a wrongful criminal prosecution, Plaintiffs make no allegations of joint, concerted
activity to deprive [plaintiff] of his civil rights.”). Count One will therefore be dismissed.
B.

18 U.S.C. § 1506 and Mass. Gen. Laws ch. 268 § 13E (Count Two)

In Count Two, the complaint asserts a claim for violations of 18 U.S.C. § 1506 and Mass.
Gen. Laws ch. 268 § 13E. 3 18 U.S.C. § 1506 is a federal criminal statute prohibiting the
alteration of a record in a United States court. Mass. Gen. Laws ch. 268 § 13E is a state criminal
statute prohibiting the unauthorized alteration of a court record.
There is no private right of action for an alleged violation of 18 U.S.C. § 1506. Shahin v.
Darling, 606 F. Supp. 2d 525, 538 (D. Del.) aff’d, 350 F. App’x 605 (3d Cir. 2009); Hamilton v.
Reed, 29 Fed. App’x 202, 204 (6th Cir. 2002) (not reported). Nor may private parties bring
claims to enforce Massachusetts criminal laws. Morissette v. Superintendent of MCI Cedar
Junction, 2014 WL 3896722, at *3 (D. Mass. Aug. 7, 2014). Count Two will therefore be
dismissed.
C.

Fourteenth Amendment Due Process Clause (Count Three) and Equal
Protection Clause (Count Four)

In Counts Three and Four, the complaint brings direct claims under the Due Process and
Equal Protection Clauses of the United States Constitution. However, “there is no direct cause
of action under the Fourteenth Amendment, and § 1983 must be employed to bring such a

3

Although Count Two cites to Mass. Gen. Laws ch. 268 § 13, it appears from the text that plaintiff
intended to allege a violation of § 13E.

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claim.” Schomburg v. Johnson, 2009 WL 799466, at *2 (D. Mass. Mar. 25, 2009); Sires v.
Hefferman, 2011 WL 2516093, at *5 (D. Mass. June 21, 2011) (citing Arpin v. Santa Clara
Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001) (“[A] litigant complaining of a
violation of a constitutional right does not have a direct cause of action under the United States
Constitution but [rather] must utilize 42 U.S.C. § 1983.”)). Counts Three and Four will therefore
be dismissed.
D.

42 U.S.C. § 1983 (Count Five)

Count Five asserts a cause of action under 42 U.S.C. § 1983. Section 1983 creates a
private right of action through which plaintiffs may recover against state actors for constitutional
violations. Goldstein v. Galvin, 719 F.3d 16, 24 (1st Cir. 2013). “A claim under § 1983 has two
‘essential elements’: the defendant must have acted under color of state law, and his or her
conduct must have deprived the plaintiff of rights secured by the Constitution or by federal law.”
Gagliardi, 513 F.3d at 306 (quoting Rodriguez-Cirilo v. Garcia, 115 F.3d 50, 52 (1st Cir. 1997).
Defendants contend that the complaint does not establish the first element, namely, that
their conduct was taken under color of state law. However, although § 1983 ordinarily does not
create a right of action against private parties, private conduct may be deemed to be “under color
of state law” when it is “fairly attributable” to the state. Lugar v. Edmondson Oil Co., Inc., 457
U.S. 922, 937 (1982). Private conduct may be attributable to the state when a private party
conspires with a state actor. Adickes v. Kress & Co., 398 U.S. 144, 152 (1970).
However, as noted above, the complaint’s allegations of a conspiracy are conclusory and
therefore insufficient to establish that defendants were acting under the color of state law. See
Tapp v. Champagne, 164 Fed. Appx. 106, 108 (2d Cir. 2006) (conclusory statement that public
defenders conspired with judges and district attorneys to effect a malicious prosecution was

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insufficient “even at the pleadings stage” to establish that public defenders were acting under
color of state law); see also Dye v. Radcliff, 174 Fed. Appx. 480, 483 & n. 1 (11th Cir. 2006)
(private individual who told law enforcement officers that the wanted to press charges against
plaintiff was not a “state actor” within the meaning of § 1983, despite plaintiff's allegations that
private individual had conspired with the officers). Count Five will therefore be dismissed.
E.

Intentional Infliction of Emotional Distress (Count Six)

Count Six asserts a claim for intentional infliction of emotional distress. In
Massachusetts, to state such a claim, a plaintiff must allege (1) that the defendant either intended
to inflict emotional distress or knew or should have known that emotional distress was the likely
result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the conduct
caused the plaintiff emotional distress; and (4) that the emotional distress was severe and of a
nature that no reasonable person could be expected to endure it. Agis v. Howard Johnson Co.,
371 Mass. 140, 144–45 (1976).
Here, the defendants’ conduct credibly alleged by the complaint does not rise to the level
of “extreme and outrageous.” Conduct is “extreme and outrageous” only if it is “so outrageous
in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.” Foley v. Polaroid
Corp., 400 Mass. 82, 99 (1987). Recovery for an IIED claim generally “requires more than ‘that
the defendant has acted with an intent which is tortious or even criminal, or that he has intended
to inflict emotional distress, or even that his conduct has been characterized by ‘malice’ or a
degree of aggravation which would entitle the plaintiff to punitive damages for another tort.'”
Doyle v. Hasbro, Inc., 103 F.3d 186, 195 (1st Cir. 1996) (quoting Foley, 400 Mass. at 99).
While “home foreclosure is a terrible event and likely fraught with unique emotions and angst,”

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foreclosures, even ones that may involve improper conduct, cannot readily be called “utterly
intolerable in a civilized community” in the absence of extreme aggravating factors. Moore v.
Mortgage Elec. Registration Sys., Inc., 848 F. Supp. 2d 107, 136 (D.N.H. 2012) (internal
citations omitted).
Because the complaint does not credibly allege conduct sufficiently extreme and
outrageous to support an IIED claim, Count Six will be dismissed.
F.

Intentional Infliction of Mental Anguish (Count Seven)

Count Seven asserts a claim for “intentional infliction of mental anguish.” However, this
Court has not been able to locate the existence of a cause of action for intentional infliction of
“mental anguish” in Massachusetts law, and the complaint makes no argument in favor of its
creation. Accordingly, the Court reads this claim as a duplicate claim for intentional infliction of
emotional distress and Count Seven will be dismissed.
G.

Unjust Enrichment (Count Eight)

Massachusetts defines unjust enrichment as the “retention of money or property of
another against the fundamental principles of justice or equity and good conscience.” Santagate
v. Tower, 64 Mass. App. Ct. 324, 329 (2005). To succeed on a claim for unjust enrichment, a
plaintiff must show (1) a benefit conferred upon defendant by plaintiff, (2) an appreciation or
knowledge by defendant of the benefit, and (3) that acceptance or retention of the benefit under
the circumstances would be inequitable without payment for its value. See Massachusetts Eye &
Ear Infirmary v. QLT Phototherapeutics, Inc., 552 F.3d 47, 57 (1st Cir. 2009).
Defendants have not challenged the complaint as insufficient to meet one of the
necessary elements, but instead contend that a claim for unjust enrichment may not be
maintained when a contract between the parties exists, pointing to the mortgage on the property

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at issue. “A plaintiff is not entitled to recovery on a theory of quantum meruit where there is a
valid contract that defines the obligations of the parties.” Boston Med. Ctr. Corp. v. Sec'y of
Executive Office of Health & Human Servs., 463 Mass. 447, 467 (2012); see also Restatement
(Third) of Restitution and Unjust Enrichment § 2 (2011) ( “A valid contract defines the
obligations of the parties as to matters within its scope, displacing to that extent any inquiry into
unjust enrichment”).
Here, it is clear that the mortgage contract and note define the rights of the parties. That
is true even if (as is commonplace) the homeowner made improvements to the property while the
mortgage debt was outstanding. Count Eight will therefore be dismissed.
H.

Claims Against State Defendants

For the reasons stated in the Court’s order of January 8, 2015, this Court does not have
jurisdiction over the claims against the Suffolk Superior Court and the Office of Transcription
Services. Any such claims will therefore be dismissed.
IV.

Conclusion
Based on the foregoing reasons, defendants’ motion to dismiss is GRANTED, and all

claims in the amended complaint are hereby DISMISSED.
So Ordered.

/s/ F. Dennis Saylor___
F. Dennis Saylor IV
United States District Judge

Dated: September 28, 2015

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