Lu v. Baker., Jr et al

Filing 41

Chief Judge Patti B. Saris: MEMORANDUM AND ORDER entered granting 37 Motion to Dismiss. Plaintiff Lu is reminded that he was ordered to file, no later than April 1, 2016, a valid return of service as to defendants G&M Court Reporters and Mary Pic cirilli or show good cause in writing for why service has not been made within the time required by Fed. R. Civ. P. 4(m), or this action will be subject to dismissal without prejudice against G&M Court Reporters and Mary Piccirilli. The clerk mailed copies of this Memorandum and Order to Plaintiff Lu and Defendant O'Connor at their addresses listed on the ecf docket. (PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
FRIEDRICH LU,
Plaintiff,
v.
CHARLES D. BAKER, JR., et al.,
Defendants.

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Civ. Action No. 15-10615-PBS

MEMORANDUM AND ORDER
March 30, 2016
SARIS, C.D.J.
For the reasons set forth below, the Court grants the
pending motion to dismiss (Docket No. 37).
INTRODUCTION
This pro se, civil rights action was initiated on March 2,
2015, against two notaries public/court reporters and Governor
Baker by plaintiff Friedrich Lu (“Lu”), who is homeless.

On

April 3, 2015, Lu filed a two-page amended complaint adding as
defendants the companies that employed the two notaries public.
By Memorandum and Order dated March 9, 2016, the Court
allowed the motions to dismiss of defendants Baker, Mitchell,
Fuller and Jones & Fuller Reporting.

See Docket No. 32.

At

that time, the Court denied Lu’s motions to compel, strike
answer, disqualify counsel and dismiss.
26, 28.

See Docket Nos. 14, 25-

By separate Order dated March 9, 2016, Lu was ordered

to file, no later than April 1, 2016, a valid return of service
as to defendants G&M Court Reporters and Mary Piccirilli or show

good cause in writing for why service has not been made within
the time required by Fed. R. Civ. P. 4(m).

See Docket No. 34.

Now before the Court is defendant O’Connor’s motion to
dismiss.

See Docket No. 37.

Docket No. 38.

Lu filed a timely opposition.

See

Lu also filed a notice advising the court that,

among other things, he did not receive copies of docket entries
number 29 (dated October 8, 2015); number 32 (dated March 9,
2016) and number 33 (dated March 9, 2016).

See Docket No. 39.

Lu explains that he did receive an envelope containing docket
numbers 34, 35 and 36 which were dated March 9, 2016.

Id.

DISCUSSION
A.

Defendant O’Connor’s Motion to Dismiss
I.

Standard of Review

A 12(b)(6) motion is used to dismiss complaints that do not
“state a claim upon which relief can be granted.” See Fed. R.
Civ. P. 12(b)(6).

In evaluating a Rule 12(b)(6) motion, the

Court must accept the factual allegations in Lu's amended
complaint as true, construe reasonable inferences in his favor,
and “determine whether the factual allegations in the
plaintiff's complaint set forth a plausible claim upon which
relief may be granted.”

Foley v. Wells Fargo Bank, N.A., 772

F.3d 63, 71 (1st Cir. 2014) (citation and internal quotation
marks omitted).

“Threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not
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suffice.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(court is
“not bound to accept as true a legal conclusion couched as a
factual allegation”).
Despite his pro se status, Lu must comply with these
requirements.

“[T]he fact that [Lu is proceeding] pro se

militates in favor of a liberal reading” of his allegations and
the Court’s “task is not to decide whether the plaintiff
ultimately will prevail but, rather, whether he is entitled to
undertake discovery in furtherance of the pleaded claim[s.]”
Rodi v. Southern New England Sch. of Law, 389 F.3d 5, 13 (1st
Cir. 2004) (citations omitted); see Ahmed v. Rosenblatt, 118
F.3d 886, 890 (1st Cir. 1997).
II.

The Complaint Fails to State a
Claim Against Defendant O’Connor

Lu argues that defendant O’Connor deprived him of his
constitutional rights at the December 22, 2014 deposition when
O’Connor failed to administer an oath to Lu.

Under the

Fourteenth Amendment of the Constitution, no State shall
“deprive any person of life, liberty, or property, without due
process of law.” U.S. Const. amend. XIV, § 1.

In order to

establish a due process claim under 42 U.S.C. § 1983, Lu must
first prove that he has a liberty or property interest and,
second, that defendants, acting under color of state law,

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deprived him of that interest without a constitutionally
adequate process.

See Logan v. Zimmerman Brush Co., 455 U.S.

422, 428 (1982); PFZ Properties, Inc. v. Rodríguez, 928 F.2d 28,
30 (1st Cir. 1991).

Here, Lu does not allege what protected

liberty or property interest he was deprived of.
Because plaintiff is pro se, and the pleadings must be
construed liberally, the complaint could be read to assert that
the identification requirements at the deposition interfered
with his access to the courts because he was homeless and did
not have identification documents.

See generally Boddie v.

Connecticut, 401 U.S. 371, 379 (1971)(sustaining a challenge
under the Due Process Clause of the Fourteenth Amendment on the
ground that indigent plaintiff was denied access to divorce
proceedings because of the court’s filing fee requirement).
Even if Lu had been denied access to the court because of
the refusal of the court reporter to notarize his deposition, Lu
must also demonstrate the absence of a “sufficient
countervailing justification for the state’s action.”
380-381.

Id. at

Here, the Executive Order provides alternatives to the

notary public for identifying the deponent, like a governmentissued identification, the oath of a credible witness who is
personally known to the public notary and who personally knows
the deponent, or the personal knowledge of the public notary
taking the deposition.

Revised Executive Order No. 455 (04-04).
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Lu has not alleged that he could not fulfill any of the
requirements for identification.

The requirements that a notary

public verify for identification of the deponent is reasonably
related to the state interest in guarding against fraud.

The

Court concludes that the as-applied challenge to the Executive
Order must fail.
Moreover, the Court has not found any case law stating that
a court reporter/notary is a state actor acting under the color
of state law when taking and transcribing a deposition. Cf.
Broadley v. Hardman, 301 Fed. App'x 4, 6 (1st Cir. 2008) (per
curiam) (holding that the issuance of a subpoena by the notary
public was insufficient to create state action).
Accordingly, plaintiff claim against O’Connor fails to
state a claim upon which relief can be granted.
B.

Lu’s Notice to the Court on Lack of Notice
Lu complains that he was not copied on the October 8, 2015

letter from the clerk to attorney Correia-Champa.
No. 29.

See Docket

Whether or not Lu was “cc’d” on the letter, as a party

to this action, he should have received a copy of the letter by
regular mail.
29.

See NEF (notice of electronic filing), Docket No.

As noted in the NEF, Lu and O’Connor do not receive

electronic notice of docket entries and the notices are sent by
regular mail.

Id.

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Additionally, Lu complains that he did not receive copies
of (1) the March 9, 2016 Memorandum and Order (#32) and (2) the
March 9, 2016 clerk’s entry (#33) stating that a copy of the
Memorandum and Order was mailed to both Lu and O’Connor on March
9, 2016.

See Docket No. 39.

Because Lu states that he did

receive an envelope containing a separate Order (#34) dated
March 9, 2016, as well as the accompanying docket entries (#35,
#36), it appears that the clerk has mailed documents to Lu and
that the problem may lie with the delivery of the mail at Lu’s
mailing address.
ORDER
Based upon the foregoing, it is hereby Ordered that:
1.

Defendant O’Connor’s Motion (Docket No. 37) to Dismiss
is granted; and

2.

Plaintiff Lu is reminded that he was ordered to file,
no later than April 1, 2016, a valid return of service
as to defendants G&M Court Reporters and Mary
Piccirilli or show good cause in writing for why
service has not been made within the time required by
Fed. R. Civ. P. 4(m), or this action will be subject
to dismissal without prejudice against G&M Court
Reporters and Mary Piccirilli.

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

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