Diaz al v. Perez

Filing 42

Judge Richard G. Stearns: ORDER entered. MEMORANDUM AND ORDER. For the reasons stated in the October 4, 2017 Memorandum and Order, this action is DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2); 1915A(b)(1),(2). The Clerk sent a copy of this Memorandum and Order by first class mail (to go out in the mail on 10/4/2017) to Luis Diaz (A#126086), MCI - Cedar Junction at Walpole, PO Box 100, Route 1A, South Walpole, MA 02071. (PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 16-11860-RGS
LUIS DIAZ
v.
MILAGROS PEREZ, et al.
MEMORANDUM AND ORDER
October 4, 2017
STEARNS, D.J.
Plaintiff Luis Diaz initiated this civil rights action while a pre-trial
detainee at MCI – Cedar Junction. In a Memorandum and Order dated
November 21, 2016, the Court directed Diaz to file an amended complaint
explaining that the Court lacked jurisdiction over some of his claims and that
certain allegations in his complaint failed to state claims upon which relief
could be granted.
After no response was filed, this case was dismissed on January 4,
2017.

Two days after dismissal, on January 6, 2017, Diaz’ amended

complaint was filed. While the amended complaint was pending on the
docket, Diaz filed a Notice of Appeal. On February 2, 2017, the Court issued
a notice of intent to vacate the dismissal and to reopen the case. In response

to the Court’s notice of intent, the United States Court of Appeals for the First
Circuit remanded the matter.
Now before the court are Diaz’ Amended Complaint (Docket No. 12)
and Supplemental Complaint (Docket No. 35). Diaz has also submitted an
affidavit (Docket No. 38). Because Diaz is proceeding pro se, the court reads
the amended and supplemental complaints with “an extra degree of
solicitude.” Rodi v. Ventetuolo, 941 F.2d 22, 23 (1st Cir. 1991); see also
Strahan v. Coxe, 127 F.3d 155, 158 n. 1 (1st Cir. 1997) (noting obligation to
construe pro se pleadings liberally) (citing Haines v. Kerner, 404 U.S. 519,
520 (1972)). However, even under a generous reading, this action is subject
to dismissal as the Amended Complaint and Supplemental Complaint simply
restate the allegations in Diaz's original complaint.

While Diaz's

Supplemental Complaint adds allegations that certain correctional officers’
subtly interfered with this litigation by using a pretext to return plaintiff's
legal mail to him rather than deliver it as addressed (Diaz contends that this
allegation exposes “the continued illegal alliance with the Federal
Government and its [informants].”), it lacks any actionable elements. See
Docket No. 35, p. 2.
Plaintiff’s affidavit, Docket No. 38, is written with the case caption for
his 2013 criminal action in Suffolk Superior Court. In the affidavit, Diaz asks
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to be permitted to address the Court in person. The affidavit then repeats
allegations found in his original, amended, and supplemental complaints.
After reviewing Diaz’ amended complaint, supplemental complaint
and affidavit, the Court concludes that he has failed to demonstrate cause
why this action should not be dismissed.
ORDER
For the foregoing reasons, and in accordance with this Court's order
dated November 21, 2016, it is ORDERED that the within action be and it is
hereby DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2); 1915A(b)(1),(2).
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE 

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