Evariste v. United States Secret Service et al

Filing 8

Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER. In accordance with this Courts Order, dated December 27, 2016, and plaintiff not having shown good cause why this case should not be dismissed pursuant to 28 U.S.C. § 1915(e)(2), it is ORDERED that this action be and it is hereby DISMISSED. (PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
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EMMANUEL EVARISTE,
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Plaintiff,
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v.
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Civil Action No. 16-12492-DJC
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UNITED STATES SECRET SERVICE, et al., )
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Defendants.
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__________________________________________)

MEMORANDUM AND ORDER
CASPER, J.

January 31, 2017

On December 27, 2016, the Court ordered the plaintiff to show good cause why this action
should not be dismissed pursuant to 28 U.S.C. § 1915(e)(2). D. 5. The Memorandum and Order
stated that his complaint is identical to the complaint he filed in Evariste v. U.S. Secret Service, et
al., C.A. No. 07-11363-NG (closed Apr. 27, 2009). After the 2007 action was dismissed, plaintiff
was free to refile his complaint within the applicable statute of limitations.1 However, he did not
re-file the instant complaint until December 6, 2016, over seven years after the dismissal of
plaintiff’s original action.
Now before the Court is plaintiff’s one-page response. D. 7. In his show cause response,
plaintiff explains that when his original lawsuit was filed in 2007, he was (1) 21 years old, (2)

Plaintiff’s civil rights claim is subject to Massachusetts’ three-year statute of limitations. See
Roman v. Townsend, 224 F. 3d 24, 29 (1st Cir. 2000); Mass. Gen. L. c. 260, § 2A (three-year
statute of limitations for personal injury claims). Plaintiff’s FTCA claim is subject to Section
2401(b) of title 28 which states that an FTCA claim is “forever barred unless it is presented in
writing to the appropriate Federal agency within two years after such claim accrues or unless action
is begun within six months after” the agency denies the claim. See 28 U.S.C. § 2401(b).
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without funds to retain an attorney and (3) unsuccessful in his efforts to obtain a public defender.
Id. He further explains that without legal knowledge, he believed it would have been frivolous for
him to have the case reopened without an attorney. Id. He now asks the Court to issue summons
and to “overrule the statute of limitation of this case due to [plaintiff’s] Pro Se status, [his] age at
the time of the incident, and the seriousness of the torts.” Id.
After review of plaintiff’s show cause response, the Court finds that he has failed to
demonstrate any reason why this action should not be dismissed as untimely. Although plaintiff
provides an explanation as to why he did not reinstate his claims sooner, such explanation bolsters
the finding that his claims are time-barred.
Accordingly, in accordance with this Court’s Order, dated December 27, 2016, and
plaintiff not having shown good cause why this case should not be dismissed pursuant to 28 U.S.C.
§ 1915(e)(2), it is ORDERED that this action be and it is hereby DISMISSED.
SO ORDERED.
/s/ Denise J. Casper
Denise J. Casper
United States District Judge

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