McNeil v. State of Massachusetts et al
Filing
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Judge Denise J. Casper: ORDER entered granting 2 emergency motion of indigency review; granting 3 Motion for Leave to Proceed in forma pauperis. Plaintiff shall, within 35 days of the date of this Memorandum and Order, demonstrate good cause i n writing why this action should not be dismissed. Failure to do so within this time frame will likely lead to dismissal of this action. No summonses shall issue pending further Order of the Court. (PSSA, 3) (Main Document 6 replaced on 12/30/2014) (PSSA, 3). Modified on 12/30/2014 (PSSA, 3).
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
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TARA MCNEIL,
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Plaintiff,
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v.
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Civil Action No. 14-14370-DJC
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STATE OF MASSACHUSETTS, et al.,
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Defendants.
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__________________________________________)
MEMORANDUM AND ORDER
CASPER, J.
December 30, 2014
For the reasons set forth below, (1) plaintiff’s emergency motion of indigency review is
allowed; (2) plaintiff’s motion to proceed in forma pauperis is allowed; and (3) plaintiff shall show
cause in writing why this action should not be dismissed. No summonses shall issue until further
Order of the Court.
BACKGROUND
On December 4, 2014, Tara McNeil (“McNeil”), a self-described homeless resident of
Boston, Massachusetts, filed a pro se complaint accompanied by motions for emergency review and
to proceed in forma pauperis. See Docket. McNeil brings this civil rights action against the
Commonwealth of Massachusetts, the City of Somerville; the Somerville Police Department; a
Somerville police officer; the Committee for Public Counsel Services (“CPCS”);1 two criminal
1
CPCS is a Massachusetts state defender service that provides legal counsel to indigent
defendants. See Trapp v. Spencer, 479 F. 3d 53, 57 (1st Cir. 2007). It is an agency of the
Commonwealth of Massachusetts. See M.G.L. c. 211D, § 1 (enabling statute establishing CPCS
to plan, oversee and coordinate the delivery of criminal legal services to criminal defendants).
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defense attorneys and unnamed Somerville District Court employees. See Complaint (“Compl.”).
The crux of the complaint concerns allegations that defendant police officer Lance Covert
arrested McNeil without probable cause at the Somerville District Court. Id. In addition to alleging
false arrest, McNeil complains of (1) the denial of a speedy trial, (2) obstruction of justice; (3) the
defendants’ failure to preserve the court surveillance tape, and (4) the public defender’s alleged
slander of McNeil. Id. at ¶ 25.
Specifically, McNeil alleges that she visited the Somerville District Court on April 14, 2014,
and again on April 16, 2014. Id. at ¶ 11. She complains that several unnamed court employees
prevented her from filing a motion concerning her appeal of a traffic ticket. Id. While at the
courthouse, McNeil alleges that a police officer, subsequently identified as defendant Covert,
arrested her. Id. at ¶ 12. McNeil complains that she was not read her Miranda rights and that Covert
kept her briefcase while McNeil was being removed from the courthouse by another police officer.
Id. at ¶¶ 13, 15. McNeil complains that Covert also performed an unlawful search of her bag. Id.
at ¶ 15.
Defendant Connie Tran was appointed as McNeil’s public defender and McNeil complains
that Tran ignored her calls, missed an appointment and placed a note with McNeil’s name in public
view. Id. at ¶¶ 16 - 18. McNeil complains that attorney Tran sent a letter to the district attorney that
contained untrue, derogatory commentary. Id. at ¶ 18. McNeil alleges that she made efforts to have
the court surveillance tape preserved as exculpatory evidence by contacting the court, the police and
attorney Tran. Id. McNeil alleges that the surveillance tape from the court was “erased” despite the
fact that McNeil asked those with legal responsibility to preserve the tape. Id. at ¶ 19.
McNeil alleges that she dismissed Tran and attorney Gilbert was then appointed as her
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attorney. Id. at ¶ 21. McNeil complains that attorney Gilbert would not file a motion to dismiss,
despite McNeil’s instructions to do so. Id.
McNeil states that “the court process [has been allowed] to float along without any
aggressive measures taken for [plaintiff’s] defense with no accountability to those that are allowing
this ‘insult to justice’ to continue.” Id. at ¶ 23. McNeil believes that she has been disrespected
because of her “homeless status.” Id. at ¶ 23. McNeil complains that her name and reputation has
been tarnished because of this incident and that her fledgling flower business has suffered as well.
Id.
For relief, McNeil seeks (1) a declaration that her constitutional rights were violated; (2) a
court order for the defendants either to produce the surveillance tape or dismiss the criminal case;
and (3) compensatory damages. Id. at ¶¶ 25 - 28.
DISCUSSION
I.
The Filing Fee
Plaintiff’s financial disclosures contained in her motion to proceed in forma pauperis
indicate that she has no substantial assets or income. Her primary source of income is from public
benefits.
She operates a small flower business. In view of these disclosures, this court finds
plaintiff has demonstrated that she is without sufficient funds to pay the applicable filing and
administrative fees, and therefore her motion for leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915 is allowed.
II.
Review
Because McNeil is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915, the Court
is authorized to dismiss actions in which a plaintiff seeks to proceed without prepayment of fees if
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the action lacks an arguable basis either in law or in fact, Neitzke v. Williams, 490 U.S. 319, 325
(1989), or if the action fails to state a claim on which relief may be granted or seeks monetary relief
against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2).
Plaintiff’s pro se pleadings must be construed generously. Hughes v. Rowe, 449 U.S. 5, 9
(1980); Haines v. Kerner, 404 U.S. 519, 520 (1972); Instituto de Educacion Universal Corp. v. U.S.
Dept., 209 F.3d 18, 23 (1st Cir. 2000). Even reading McNeil's complaint with “an extra degree of
solicitude” due to her pro se status, Rodi v. Ventetuolo, 941 F.2d 22, 23 (1st Cir.1991), the
complaint is subject to dismissal.
III.
The Complaint Is Subject to Dismissal
Upon review of the complaint, this Court finds that it is subject to dismissal. “Generally
speaking, 42 U.S.C. § 1983 provides a cause of action for the ‘deprivation of any rights, privileges,
or immunities secured by the Constitution and laws’ by any person acting ‘under color of any
statute, ordinance, regulation, custom, or usage, of any State or Territory.’” Grapentine v. Pawtucket
Credit Union, 755 F.3d 29, 31 (1st Cir. 2014) (quoting 42 U.S.C. § 1983). To state a claim under
that statute, a plaintiff must assert two allegations: (1) “that some person deprived [her] of a federal
right,” and (2) that such person “acted under color of state or territorial law.” Id. (quoting Gomez
v. Toldeo, 446 U.S. 635, 640 (1980)) (alteration in original).
A.
Somerville Police Department, Commonwealth and CPCS
Here, the Somerville Police Department and the Committee for Public Counsel Services are
subject to dismissal as parties to this action. Police departments and state agencies generally are not
deemed to be “persons” for purposes of Section 1983. See, e.g.,Curran v. City of Boston, 777 F.
Supp. 116 (D. Mass. 1991) (holding that a police department is considered a non-person and is not
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a suable entity under Section 1983); Johnson v. Rodriguez, 943 F.2d 104 (1st Cir. 1991) (state
agency may not be sued for alleged civil rights violations).
Neither a State, nor its agencies are “persons” subject to liability for damages in a Section
1983 action. Will v. Michigan, 491 U.S. 58, 66 (1989). While “section 1983 provides a federal
forum to remedy many deprivations of civil liberties, it does not provide a federal forum for litigants
who seek a remedy against a State for alleged deprivations of civil liberties.” Id. The Eleventh
Amendment bars such suits unless the State has waived its immunity. Id.; Pennhurst v. Halderman,
465 U.S. 89, 99 (1984) (holding that a state’s consent to being sued in federal court must be express
and unequivocal). To the extent McNeil complains that CPCS, an agency of the Commonwealth
of Massachusetts, denied her right to a speedy trial, such claims are subject to dismissal because the
Commonwealth has not waived it sovereign immunity to suit in federal court.
B.
CPCS Attorneys Tran and Gilbert
“[A] public defender does not qualify as a state actor when engaged in his general
representation of a criminal defendant.” Georgia v. McCollum, 505 U.S. 42, 53 (1992) (citing Polk
Cnty. v. Dodson, 454 U.S. 312 (1981)). Although the public defender in Polk was a full-time
government employee, he was not acting “under color of state law” because, except for source of
payment, the lawyer-client relationship was no different than one with a privately retained lawyer
and was essentially a “private function.” Polk, 454 U.S. at 319.
Moreover, it is well established that neither a state nor a state official in his or her official
capacity is a “person” subject to liability in a Section 1983 damages action. Will, 491 U.S. at 65-66.
A section 1983 claim against a person in his official capacity is a suit against a State. Id. at 66.
Here, to the extent McNeil seeks monetary damages against Tran and Gilbert in their official
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capacities as CPCS attorneys, the claim is barred by the doctrine of sovereign immunity. Id. at 6566.
C.
Unidentified Court Employees
Here, McNeil complains that several unnamed court clerks and supervisors denied her
request for forms and her requests to file motions. Instead, she told that she was not allowed to file
such motions and was advised to wait and speak to the judge.
However, the doctrine of quasi-absolute judicial immunity extends to employees of a court
when they perform tasks that are an integral part of the judicial process. See Andre v. Moriarty, et
al., No. 11-40009, 2011 WL 1456773, *7 (D. Mass. 2011) (Saylor, J.) (citing Book v. Dunlavey,
2009 WL 891880, *4 (W.D. Pa. 2009), Gallas v. Supreme Court of Pennsylvania, 211 F.3d 760,
772-73 (3d Cir.2000) (deputy court administrator); Mullis v. United States Bankr. Court for the Dist.
of Nevada, 828 F.2d 1385, 1390 (9th Cir.1987) (clerks and deputy clerks); Kincaid v. Vail, 969 F.2d
594, 601 (7th Cir.1992) (quasi-judicial immunity applied to court support personnel because of “the
danger that disappointed litigants, blocked by the doctrine of absolute immunity from suing the
judge directly, will vent their wrath on clerks, court reporters, and other judicial adjuncts”)). A court
administrator or deputy administrator, who is charged with the duty of carrying out facially valid
courts orders, enjoys quasi-judicial immunity from liability for damages in a suit challenging
conduct prescribed by that order. See Addlespurger v. Corbett, No. 11-3915, 461 F. App'x 82,
85–86 (3d Cir. 2012).
Here, McNeil failed to set forth facts sufficient to identify these individuals nor has she
alleged facts that can overcome the quasi-judicial immunity that benefits the unnamed court clerks
and supervisors. The complaint, as drafted, is not sufficient to state a claim for the violation of her
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constitutional rights by the unnamed court defendants and the claims are subject to dismissal.
D.
City of Somerville
To the extent McNeil asserts a claim against the City of Somerville, such claim is subject
to dismissal. Although municipalities and counties are "persons" for purposes of Section 1983,
liability against these political subdivisions may not arise vicariously. Mt. Healthy City School Dist.
Bd. of Educ. v. Doyle, 429 U.S. 274, 279 (1977); Monell v. Department of Soc. Servs., 436 U.S.
658, 691-92 (1978). The First Circuit summarized the law of municipal liability as follows:
Generally, a municipality ‘may be liable under [section 1983] if the governmental body itself
“subjects” a person to a deprivation of rights or “causes” a person “to be subjected” to such
deprivation.’ Connick v. Thompson, ––– U.S. ––––, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417
(2011) (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 692, 98 S.Ct. 2018, 56 L.Ed.2d
611 (1978)). However, municipalities are not vicariously liable under section 1983 for the
actions of their non-policymaking employees. See Bd. of Cnty. Comm'rs of Bryan Cnty. v.
Brown, 520 U.S. 397, 403–04, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). They are
responsible only for their own unconstitutional acts. Pembaur v. City of Cincinnati, 475 U.S.
469, 478–79, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). Thus, a plaintiff who brings a section
1983 action against a municipality bears the burden of showing that, ‘through its deliberate
conduct, the municipality was the “moving force” behind the injury alleged.’ Brown, 520
U.S. at 404, 117 S.Ct. 1382 (emphasis in original) (quoting Monell, 436 U.S. at 694, 98 S.Ct.
2018). Such a plaintiff must ‘identify a municipal “policy” or “custom” that caused the
plaintiff's injury.’ Id. at 403, 117 S.Ct. 1382 (quoting Monell, 436 U.S. at 694, 98 S.Ct.
2018).
Haley v. City of Boston, 657 F.3d 39, 51 (1st Cir. 2011).
Here, McNeil’s claims against the City of Somerville fail because she has failed to allege the
existence of an unconstitutional custom or policy. Moreover, such claim cannot be based on the
alleged unconstitutional actions of a police officer under a theory of vicarious liability. Thus, the
claims against the City of Somerville are subject to dismissal.
E.
Abstention
Most, if not all, of McNeil’s claims involve due process violations in connection with her
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arrest and prosecution. However, absent extraordinary circumstances, federal courts are not
authorized to interfere with a State’s pending criminal proceedings. See Younger v. Harris, 401 U.S.
37 (1971). Here, it appears from the allegations in the complaint that McNeil’s state criminal
proceedings are still pending. This court is without jurisdiction to intervene in a state criminal
proceeding or act as an appellate court with respect to those proceedings. See In re Justices of
Superior Court Dept. of Massachusetts Trial Court, 218 F.3d 11, 16 (1st Cir. 2000). There are no
circumstances presented here which would exempt this case from the abstention principles.
Therefore, to the extent that McNeil is entitled to any relief with respect to her state criminal
charges, she must present her claims to the state court presiding over the criminal proceedings or
any appropriate state appellate court.
IV.
Show Cause Order
In light of the above, the Court will permit McNeil an opportunity to show cause why this
action should not be dismissed for the reasons stated in this Memorandum and Order.
ORDER
Accordingly, it is hereby ORDERED that:
1)
Plaintiff’s emergency motion of indigency review is allowed.
2)
Plaintiff’s motion to proceed in forma pauperis is allowed.
3)
Plaintiff shall, within 35 days of the date of this Memorandum and Order,
demonstrate good cause in writing why this action should not be dismissed. Failure
to do so within this time frame will likely lead to dismissal of this action.
4)
No summonses shall issue pending further Order of the Court.
SO ORDERED.
/s/ Denise J. Casper
Denise J. Casper
United States District Judge
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