Malouf v. Benson et al

Filing 6

District Judge Leo T. Sorokin: MEMORANDUM AND ORDER entered granting 2 Motion for Leave to Proceed in forma pauperis; denying without prejudice 3 Motion to Appoint Counsel. If Malouf wishes to pursue this action, she must file an amended compl aint that clearly identifies who the defendants are, what each defendant did wrong, and the legal claim against each party. Plaintiff shall amend her complaint, as set forth herein, within 28 days of the date of entry of this Memorandum and Order. Failure to comply with this Order will likely result in the dismissal of this action. The Clerk sent by first class mail a copy of this Memorandum and Order to plaintiff on October 19, 2017, at the address listed on the docket. (PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

LINDA MARIE MALOUF,
Plaintiff,
v.
STEPHEN M. BENSON,
Defendants.

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Civil No. 17-10941-LTS

MEMORANDUM AND ORDER
October 19, 2017
SOROKIN, J.
For the reasons set forth below, the court: (1) grants the plaintiff’s motion for leave to
proceed in forma pauperis; (2) denies the plaintiff’s motion for appointment of counsel; and (3)
orders the plaintiff to amend her complaint within 28 days of the date of this Order.
I.

BACKGROUND
On May 22, 2017, Linda Marie Malouf (“Malouf”), a California resident, brought this

action pursuant to G.L. c. 260, § 4C, based on the Court’s diversity jurisdiction. See Complaint
(“Compl.”).

Malouf seeks monetary damages from the two defendants. Id. The named

defendants are the Marshfield School District in Marshfield, Massachusetts, and Stephen M.
Benson of Pennsylvania. Id.
With her complaint, Malouf filed a motion for leave to proceed in forma pauperis and for
appointment of counsel. See Docket Nos. 2, 3.

II.

DISCUSSION
A.

Plaintiff’s Motion to Proceed In Forma Pauperis

Upon review of the plaintiff’s motion for leave to proceed in forma pauperis, the Court
concludes that she has shown that she is without assets to pay the filing fee. Accordingly, the
motion is allowed. See 28 U.S.C. § 1915(a).
B.

Screening of the Action

When a plaintiff is allowed to proceed without prepayment of the filing fee, summonses
do not issue until the Court reviews the complaint and determines that it satisfies the substantive
requirements of 28 U.S.C. § 1915(e). In conducting this review, the Court liberally construes the
complaint because the plaintiff is proceeding pro se. See Haines v. Kerner, 404 U.S. 519, 520-21
(1972). Even under a liberal reading, however, the complaint is deficient and will need to be
amended for the Court to properly screen it pursuant to 28 U.S.C. §1915(e)(2).
B.

Plaintiff’s Complaint Fails to Comply with the Basic Rules of Pleading

Plaintiff’s complaint does not comport with the basic pleading requirements of the Federal
Rules of Civil Procedure and must be amended. “The Federal Rules of Civil Procedure require
that a complaint include a short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2). To satisfy Federal Rule of Civil Procedure 8(a), a plaintiff must
allege claims in a way that gives the defendants fair notice of what the claims are and the grounds
for those claims. Ruiz-Rosa v. Rullán, 485 F.3d 150, 154–55 (1st Cir 2007) (citing Calvi v. Knox
County, 470 F.3d 422, 430 (1st Cir.2006)). The complaint “must ‘at least set forth minimal facts
as to who did what to whom, when, where, and why.’” Ruiz-Rosa, 485 F.3d at 154 (quoting
Educadores Puertorriquñeos en Acción v. Hernández, 367 F.3d 61, 66 (1st Cir. 2004)).

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Other provisions of the Federal Rules of Civil Procedure that are applicable to the drafting
of a complaint include Rules 10 and 20. Rule 10 requires plaintiff to state her claims “in numbered
paragraphs, each limited as practicable to a single set of circumstances”, and that if “doing so
would promote clarity, each claim founded on a separate transaction or occurrence…must be stated
in a separate count…” Fed. R. Civ. P. 10(b). 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.” Fed. R. Civ. P. 20(a)(2)(A).
Here, Malouf used the pre-printed form, Pro Se 1 (Complaint for a Civil Case), that is
provided by the Administrative Office of the United States Courts. See Compl., Docket No. 1.
Malouf clearly identifies the parties and the relief sought on the five-page form. Id. She indicates
diversity jurisdiction based on “loss of career, emotional distress, physical injury, severe PTSD
[and] clinical depression.” Id. at ¶ II(B)(3). However, the five-page complaint, standing alone,
does not include any factual allegations upon which plaintiff’s claims are based. Even with a
lenient reading of the complaint, it does not comport with Rule 8 because it fails to provide
sufficient factual information.
Malouf’s factual allegations against the defendants are found in a forty-eight page
document entitled “statement of claim.” See Compl., Docket No. 1-1. Malouf’s “statement of
claim” is submitted as an attachment to the complaint. Id. Instead of writing a short and plain
statement of her claim in the complaint, Malouf simply writes “see attached statement of claim in
form of response to a questionnaire from Mitchell Garabedian.” See Compl., at ¶ III (statement of
claim). Despite the fact that the “the statement of claim” is of considerable length, it does not
conform to the pleading requirements of the Federal Rules of Civil Procedure.

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C.

Plaintiff will be Provided an Opportunity to Amend the Complaint

If Malouf wishes to pursue this action, she must file an amended complaint that clearly
identifies who the defendants are, what each defendant did wrong, and the legal claim against each
party. As an amended complaint completely supercedes the original complaint, see Brait Builders
Corp. v. Massachusetts, Div. of Capital Asset Mgt., 644 F.3d 5, 9 (1st Cir. 2011), Malouf should
repeat in an amended complaint anything from the original complaint and “statement of claim”
that she wishes to be part of the amended complaint. In other words, in evaluating the sufficiency
of the amended complaint, the court will not look to the original complaint and the accompanying
“statement of claim.”
Accordingly, within 28 days of the date of this Memorandum and Order, the plaintiff shall
file an amended complaint setting forth claims upon which relief may be granted. The amended
complaint should focus on the legal claims against each defendant and the factual basis for such
claims. In other words, plaintiff should set forth at least minimal facts as to who did what to whom,
when, where, and why. Plaintiff should also not assert multiple causes of action against a
defendant in one count; rather, she should identify separately each cause of action and the grounds
therefor.
IV.

CONCLUSION
Accordingly, it is hereby ORDERED that:
1.

Plaintiff’s motion for leave to proceed in forma pauperis is granted.

2.

Plaintiff’s motion to appoint counsel is denied without prejudice. Although the Court
“may request an attorney to represent any person unable to afford counsel,” 28 U.S.C.
§1915(e)(1), a civil plaintiff lacks a constitutional right to free counsel, see DesRosiers
v. Moran, 949 F.2d 15, 23 (1st Cir. 1991). Because the Defendants have not responded
to the complaint, the Court cannot determine whether exceptional circumstances exist
that would justify appointment of counsel. The Plaintiff may renew her motion after
the Defendants have responded to the complaint.

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3.

Plaintiff shall amend her complaint, as set forth herein, within 28 days of the date of
entry of this Memorandum and Order.

4.

Failure to comply with this Order will likely result in the dismissal of this action.
SO ORDERED.
/s/ Leo T. Sorokin
Leo T. Sorokin
United States District Judge

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