Olmo v. Narker et al

Filing 10

Judge William G. Young: MEMORANDUM AND ORDER entered denying without prejudice 2 Motion for Leave to Proceed in forma pauperis; denying without prejudice 3 petition for law magistrate review and pro bono appointment. If the plaintiff wishes to pursue this action, he must, within 35 days of the date of this Memorandum and Order, file (1) either payment of the $400 filing and administrative fees or file a complete Application to Proceed in District Court Without Prepaying Fees or Costs and (2) file an amended complaint. Failure to do so will result in dismissal of this action without prejudice. (Attachments: # 1 IFP application) (PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOHN IVAN OLMO,
Plaintiff,
v.
STEVEN NARKER, et al.,
Defendants.

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CIVIL ACTION
NO. 14-13434-WGY

MEMORANDUM AND ORDER
YOUNG, D.J.

October 21, 2014

For the reasons set forth below, the Court denies without
prejudice the plaintiff’s motions for counsel and for leave to
proceed in forma pauperis and directs the plaintiff to file an
amended complaint.
I.

Background
On September 5, 2014, John Ivan Olmo, a self-described

homeless resident of Waltham, Massachusetts, filed a pro se
complaint and motions for counsel and for leave to proceed in
forma pauperis.
The complaint is impossible to understand and, as best can
be gleaned from the allegations, it appears that it has something
to do with certain alleged financial improprieties.

The

complaint consists of seven separately signed documents; each
lacking a decipherable narrative.

For example, the first

document, begins “1. Whereby Mr. John Ivan Olmo was the only
person who did not receive a return e-mails no phone calls from
Steven Narker, Judy Lee, Luz Maria Olmo, David Olmo, Michael D.

Nieves, Peter K. Chin, Nelly Rosario, Evelyn Colon, Luz ‘Cuchie’
Fernandez, Erica Colon etc. et. al.”

See Complaint (“Compl.”), ¶

1.
II.
A.

Discussion
Motion for Leave to Proceed In Forma Pauperis

A litigant filing a complaint in this court must either (1)
pay the $350.00 filing fee and the $50.00 administrative fee,
see 28 U.S.C. § 1914(a); or (2) seek leave to proceed without
prepayment of the filing fee, see 28 U.S.C. § 1915 (proceedings
in forma pauperis).
Olmo states that he is homeless and it appears that he is
without means to pay the filing fee.

See Docket No. 2.

However, the motion is incomplete because Olmo failed to answer
Question 4 concerning the amount of money that he has in cash or
in a checking or savings account. Id. at ¶ 4.

Because the

Application is incomplete, the Court cannot conclusively
determine whether Olmo is indigent within the meaning of the in
forma pauperis statute.

However, he will be provided with an

opportunity to file a complete motion to proceed in forma
pauperis.
B.

Plaintiff’s Complaint is Subject to Dismissal

Plaintiff’s complaint fails to state a claim upon which
relief may be granted because the complaint does not meet the
pleading requirements of Rule 8 of the Federal Rules of Civil
Procedure.
A complaint must include “a short and plain statement of the
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claim showing that the pleader is entitled to relief.”
Civ. P. 8(a)(2).

Fed. R.

At a minimum, the complaint must “give the

defendant fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.”

Calvi v. Knox County, 470 F.3d

422, 430 (1st Cir. 2006) (quoting Educadores Puertorriqueños en
Acción v. Hernández, 367 F.3d 61, 66 (1st Cir.

2004)).

This

means that the statement of the claim must “at least set forth
minimal facts as to who did what to whom, when, where, and why.”
Id. (quoting Educadores, 367 F.3d at 68).

Although the

requirements of Rule 8(a)(2) are minimal, “minimal requirements
are not tantamount to nonexistent requirements.”

Id. (quoting

Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988)).
Here, without detailing each and every pleading deficiency
in the complaint, the Court finds that Olmo’s complaint lacks the
“who, what, when, where, and why” information necessary to set
forth a cognizable claim as to each defendant separately.

The

complaint does not comply with the “short and plain” requirement
of Rule 8(a) because it is incomprehensible.

The most the court

can glean from the complaint is that he believes that he is
entitled to certain settlement funds that were allegedly secured
by a lawyer who placed his money in an investment club managed by
a law firm with personal ties to several New York elected
officials.

Missing from the complaint is any decipherable

articulation of what happened to whom, when, and where and the
manner in which the alleged misconduct violated his rights.
defendants would be completely unable to submit a meaningful
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The

response to this complaint because it does not give them any
notice of the claims against them.

Further, because the

complaint is unintelligible, the Court cannot reasonably infer
therefrom that the defendants engaged in any misconduct.
If the plaintiff wishes to pursue this action, he must file
an amended complaint which meets the requirements of Rule 8(a),
including the requirement that the pleading be “short and
plaint.”

The plaintiff must clearly state what each defendant

allegedly did and he must identify the causes of action she is
bringing against each defendant.

The claims in a complaint must

be set forth “in numbered paragraphs, each limited as far as
practicable to a single set of circumstances.”
10(b).

Fed. R. Civ. P.

Further, where a plaintiff brings claims against more

than one defendant in a single lawsuit, the claims must be
limited to those “arising out of the same transaction,
occurrence, or series of transactions or occurrences.”
Civ. P. 20(a)(2)(A).

Fed. R.

Finally, the Court’s Local Rules mandate

that typed complaints be double-spaced (except for the
identification of counsel, title of the case, footnotes,
quotations and exhibits).

See Local Rule 5.1(a)(2).

In light of the pleading deficiencies, Olmo is directed to
file an “Amended Complaint” within 35 days of the date of this
Memorandum and Order.
C. Petition for Law Magistrate Review & Pro Bono Appointment
Under 28 U.S.C. § 1915(e)(1), the court “may request an
attorney to represent any person unable to afford counsel.” 28
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U.S.C. § 1915(e)(1).

In order to qualify for appointment of

counsel, a party must be indigent and exceptional circumstances
must exist such that denial of counsel will result in fundamental
unfairness impinging on the party’s due process rights.

Id.

At this juncture, Olmo has not been granted leave to proceed
in forma pauperis.

Accordingly, plaintiff’s motion is denied

without prejudice.
ORDER
Accordingly:
1.

The motion (#2) for leave to proceed in forma pauperis

is DENIED without prejudice.
2.

The petition (#3) for law magistrate review and pro

bono appointment is DENIED without prejudice.
3.

If the plaintiff wishes to pursue this action, he must,

within 35 days of the date of this Memorandum and Order, file (1)
either payment of the $400 filing and administrative fees or file
a complete Application to Proceed in District Court Without
Prepaying Fees or Costs and (2) file an amended complaint.
Failure to do so will result in dismissal of this action without
prejudice.
SO ORDERED.
/s/ William G. Young
WILLIAM G. YOUNG
UNITED STATES DISTRICT JUDGE

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