Decarvalho v. Telford et al

Filing 7

Magistrate Judge Marianne B. Bowler: MEMORANDUM AND ORDER entered denying without prejudice 2 Motion to Appoint Special Process Server; denying without prejudice 3 Motion to Appoint Counsel; granting 4 Motion for Leave to Proceed in forma pa uperis and assessing an initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1)(A), with the remainder of the fee to be assessed and collected in accordance with 28 U.S.C. § 1915(b)(2). The Complaint is subject to dismissal pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A(b)(1), (2). If plaintiff wishes to pursue this action, he must, within forty-two (42) days from the date of this Memorandum and Order, file an amended complaint. (PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JANITO DECARVALHO,
Plaintiff
v.

CIVIL ACTION NO.
NO. 17-11224-MBB

ERIK TELFORD, et al.,
Defendants.
MEMORANDUM AND ORDER
August 22, 2017

BOWLER, U.S.M.J.
Plaintiff Janito Decarvalho, (“Decarvalho”), an inmate
confined to MCI Concord, filed a pro se complaint accompanied by
motions to proceed in forma pauperis, for appointment of counsel
and for service.

This action was randomly assigned to the

undersigned Magistrate Judge pursuant to the District Court’s
Program for Random Assignment of Civil Cases to Magistrate
Judges.
I.

Background

Plaintiff brings this action seeking damages for false
imprisonment, loss of property and malicious prosecution in
violation of the Fourth, Fifth and Fourteenth Amendments to the
United States Constitution.

Named as defendants are a Plymouth

County prosecutor, the Massachusetts State Police and ten state
1

troopers; the Brockton Police Department and two police
detectives; the FBI and an FBI special agent; the City of
Brockton, Plymouth County and an unnamed defendant.
Plaintiff's claims stem from his May 14, 2012 arrest in his
Brockton apartment.

Plaintiff alleges that the defendants

entered his apartment with a “no knock” warrant.

He alleges

that several days after his arrest, he was informed by relatives
that when they arrived at his apartment after his arrest, they
observed that the main entrance to the premises was unlocked and
open and that plaintiff’s personal property had been stolen from
the apartment.

Plaintiff alleges that he was taken to the

Plymouth House of Correction the day after his arrest and was
subsequently released on bail.

On June 17, 2015, plaintiff was

acquitted of all charges stemming from his May 14, 2012 arrest.
II.

Application to Proceed Without Prepaying Fees or Costs

A party bringing a civil action must either (1) pay the
$350.00 filing fee and the $50.00 administrative fee, see 28
U.S.C. § 1914(a); or (2) seek leave to proceed without
prepayment of the filing fee, see 28 U.S.C. § 1915 (proceedings
in forma pauperis).

Unlike other civil litigants, prisoner

plaintiffs are not entitled to a complete waiver of the filing
fee, notwithstanding the grant of in forma pauperis status.

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Upon review of Decarvalho’s financial disclosures in his in
forma pauperis application and his prison account statement,
this Court will ALLOW his Motion for Leave to Proceed in forma
pauperis (Docket No. 2).

Nevertheless, because Decarvalho is a

prisoner as defined by 28 U.S.C. § 1915(h), he is obligated to
make payments toward the filing fee pursuant to 28 U.S.C. §
1915(b).

In light of this, plaintiff will be assessed an

initial partial filing fee of $12.46 pursuant to 28 U.S.C. §
1915(b)(1)(A), with the remainder of the fee, $337.54, to be
assessed and collected in accordance with 28 U.S.C. §
1915(b)(2).
III. Screening of the Complaint
Because Decarvalho is a prisoner proceeding without the
prepayment of the filing fee, the complaint is subject to review
to determine if it satisfies the requirements 28 U.S.C. § 1915
(proceedings in forma pauperis) and 28 U.S.C. § 1915A (screening
of suits against governmental officers and entities).

Section

1915 authorizes the federal courts to dismiss an action in which
a plaintiff seeks to proceed without prepayment of the filing
fee if 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

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seeks monetary relief against a defendant who is immune from
such relief.

See 28 U.S.C. § 1915 (e)(2); Neitzke v. Williams,

490 U.S. at 325; Denton v. Hernandez, 504 U.S. 25, 32-33 (1992);
Gonzalez-Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir.
2001).

Section 1915A also authorizes the Court to review

prisoner complaints in civil actions in which a prisoner seeks
redress from a governmental entity, or officers or employees of
a governmental entity, and to dismiss the action regardless of
whether or not the plaintiff has paid the filing fee, if the
complaint lacks an arguable basis in law or fact, fails to state
a claim, or seeks relief from a defendant immune from such
relief. 28 U.S.C. § 1915A.
Under the Federal Rules of Civil Procedure, a complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”
Procedure 8(a).

Federal Rule of Civil

Rule 8 is a fact pleading standard.

In

determining whether a complaint states a claim, the court
accepts as true the well-pleaded allegations in the complaint
and takes reasonable inferences in the plaintiff's favor.
Martino v. Forward Air, Inc., 609 F.3d 1, 2 (1st Cir. 2010).
To avoid dismissal, "a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief

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that is plausible on its face."
U.S. 544, 570 (2007).

Bell Atl. Corp. v. Twombly, 550

The“[f]actual allegations must be enough

to raise a right to relief above the speculative level... on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Id. at 555 (internal citations
omitted).

The plausibility standard does not require a

probability but is more than a mere possibility.

Ashcroft v.

Iqbal, 556 U.S. 662 (2009).
In conducting the preliminary screening, the Court
construes plaintiff's pro se complaint generously.

See Haines

v. Kerner, 404 U.S. 519, 520 (1972); Rodi v. New Eng. Sch. of
Law, 389 F.3d 5, 13 (1st Cir. 2004).
IV.

Analysis

Although Decarvalho has not directly invoked 42 U.S.C. §
1983, some of his claims could be construed as falling under the
purview of that section.

Title 42 U.S.C. § 1983 grants

individuals the right to sue those acting “under color of any
statute, ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia ... [for] the
deprivation of any rights, privileges, or immunities secured by
the Constitution and laws.” 42 U.S.C. § 1983.

Thus, to state a

claim for relief under Section 1983, a plaintiff must show that

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“the challenged conduct [is] attributable to a person acting
under color of state law” and that “the conduct must have worked
a denial of rights secured by the Constitution or by federal
law.”

Freeman v. Town of Hudson, 714 F.3d 29, 37 (1st Cir.

2013) (citing Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir.
1997).
A.

Failure to Comply with Fed. R. Civ. P. 8

As filed, the complaint does not comport with the pleading
requirements of Rule 8(a) of the Federal Rules of Civil
Procedure.

Rule 8(a) governs the substance of a pleading, and

requires a plaintiff to include in the complaint, among other
things, “a short and plain statement of the claim showing that
the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

This statement must “give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it rests,”
Rivera v. Rhode Island, 402 F.3d 27, 33 (1st Cir. 2005) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)), such that the
defendant is afforded a “meaningful opportunity to mount a
defense.” Díaz-Rivera v. Rivera-Rodríguez, 377 F.3d 119, 123
(1st Cir. 2004) (quoting Rodríguez v. Doral Mortgage Corp., 57
F.3d 1168, 1172 (1st Cir. 1995)).

“In a civil rights action

..., the complaint should at least set forth minimal facts as to

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who did what to whom, when, where, and why.” Educadores
Puertorriqueños en Acción v. Hernandez, 367 F.3d 61, 68 (1st
Cir. 2004).
Here, by asserting his claims collectively against the
defendants, and by failing to provide underlying factual support
for liability for each cause of action asserted, Decarvalho
fails to comply with Rule 8.

See Bagheri v. Galligan, 160 Fed.

Appx. 4, 5, 2005 WL 3536555, *1 (1st Cir. 2005) (unpublished
decision finding complaint deficient because, among other
things, it failed to state clearly which defendant or defendants
committed each of the alleged wrongful acts; “[the district
court's requirement of an amended complaint] to remedy this
deficiency did not demand more than the minimum necessary to
satisfy notice pleading standards.”); see also Hurney v. Carver,
602 F.2d 993, 995 (1st Cir. 1979) (Even a pro se complaint must
be “... backed up with enough supportive facts to outline the
elements of the pleader's claim ...” and courts “need not
conjure up unpleaded facts to support conclusory
allegations].”); Atuahene v. City of Hartford, 10 Fed. Appx. 33,
*34, 2001 WL 604902, *1 (2d Cir. 2001) (unpublished decision,
stating “[b]y lumping all the defendants together in each claim
and providing no factual basis to distinguish their conduct,

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[plaintiff's] complaint failed to satisfy this minimum standard
....”).

“Although pleading standards are minimal, the First

Circuit requires ‘more than conclusions or subjective
characterizations.’”

Columbus v. Biggio, 76 F. Supp. 2d, 43, 52

(D. Mass. 1999) (citing Dewey v. University of New Hampshire,
694 F.2d 1, 3 (1st Cir. 1982), cert. denied, 461 U.S. 944
(1983).
B.

Timeliness

Unlike the statute of limitations for malicious
prosecution, which begins to run upon the termination of the
challenged criminal proceeding, the limitations period for false
imprisonment claims under Section 1983 “begins when the arrestee
is released or detained pursuant to legal process.”

Holmes v.

Meleady, 738 F. Supp. 2d 196, 201-202 (D. Mass. 2010) (citing
Wallace v. Kato, 549 U.S. 384, 389 (2007)).

Here, Decarvalho

alleges that he was arrested and charged on May 14, 2012, and
was acquitted on June 17, 2015.

Decarvalho’s complaint was not

submitted to this court until June 30, 2017.

Except for the

malicious prosecution claim which began to run on or about June
17, 2015, the remainder of the Section 1983 claims are barred by
Massachusetts's three-year statute of limitations (M.G.L.A.
Chapter 260, § 2A) on personal injury actions, which is

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applicable to civil rights complaints submitted to this Court
under 42 U.S.C. § 1983.
C.

Owens v. Okure, 488 U.S. 235 (1989).

The Brockton Police Department

A Section 1983 claim cannot be pursued against the Brockton
Police Department because it is not a “person” within the
meaning of § 1983.

The Brockton Police Department is a

municipal department of the City rather than an independent
legal entity that is subject to suit.

Franklin v. City of

Boston, No. CV 16-10484-FDS, 2016 WL 4534016, at *1 (D. Mass.
Aug. 30, 2016) (citing Henschel v. Worcester Police Dep't, 445
F.2d 624, 624 (1st Cir. 1971) (explaining that “the Police
Department [is not] a suable entity”); Stratton v. City of
Boston, 731 F. Supp. 42, 46 (D. Mass. 1989) (“[T]he [Boston]
Police Department is not an independent legal entity.

It is a

department of the City of Boston.”); accord Winfield v.
Perocchi, 2015 WL 4482940, at *3 (D. Mass. July 22, 2015)
(treating claims against the Lawrence Police Department as
claims against the City of Lawrence).

As such, the claim

against the Brockton Police Department is subject to dismissal.
D.

Prosecutorial Immunity

Plaintiff claims that he is entitled to damages from
Plymouth County and a “D.A. Detective Paul Wolf.”

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However,

based on reasonable inferences from the complaint, any such
claims are barred by the doctrine of absolute prosecutorial
immunity.

A district attorney and his or her assistants are

absolutely immune in a civil rights suit for any prosecutorial
“actions that are ‘intimately associated with the judicial phase
of the criminal process.’”

Van de Kamp v. Goldstein, 555 U.S.

335, 341 (2009) (quoting Imbler v. Pachtman, 424 U.S. 409, 430
(1976)).

“The protections of absolute immunity, moreover,

extend to actions that occur prior to a formal court proceeding
and outside of a courtroom.”

Miller v. City of Boston, 297 F.

Supp. 2d 361, 370 (D. Mass. 2003).

The distinction between the

roles of “prosecutor” and “investigator” is not always clear.
Imbler, 424 U.S. at 431 n.33.

Here, the allegations in the

complaint concern Defendant Wolf, and appear to be barred by
prosecutorial immunity.
Additionally, Decarvalho presumably names Plymouth County
as a defendant because it was the employer of Defendant Wolf.
However, any civil rights claim against Plymouth County are not
cognizable because they are based on a theory of respondeat
liability, and such theory is not applicable to civil rights
claims under Section 1983.

“It is well-established that ‘only

those individuals who participated in the conduct that deprived

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the plaintiff of his rights can be held liable’ ” under Section
1983.

Velez-Rivera v. Agosto-Alicea, 437 F.3d 145, 156 (1st

Cir. 2006) (quoting Cepero-Rivera v. Fagundo, 414 F.3d 124, 129
(1st Cir. 2005)).
E.

Fourth, Fifth and Fourteenth Amendment Claims

The precise nature of plaintiffs' Fourth, Fifth and
Fourteenth Amendment claims are not clear from the Complaint.
Plaintiff might be attempting to assert claims arising out of
defendants’ entry into plaintiff’s apartment, the arrest they
effected and the personal property allegedly stolen.
The Fourth Amendment guarantees the right to be free from
unreasonable searches and seizures in the absence of a warrant
supported by probable cause.

See, e.g., United States v. White,

804 F.3d 132, 136 (1st Cir. 2015).

“The right to be free from

unreasonable seizure (and, by extension, unjustified arrest and
detention) is clearly established in the jurisprudence of the
Fourteenth Amendment (through which the Fourth Amendment
constrains state action).” Camilo–Robles v. Hoyos, 151 F.3d 1, 6
(1st Cir. 1998).
Under Section 1983, “a plaintiff must show at minimum that
the arresting officers acted without probable cause.”
Cannon, 731 F. 2d 54, 62 (1st Cir. 1984).

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Mann v.

A police officer may

not be liable for false imprisonment if he had a legal
justification for the confinement.

Sietins v. Joseph, 238 F.

Supp. 2d 366, 381 (D. Mass. 2003) (internal quotation marks
omitted).

Recent cases have addressed the scope of claims under

the Fourth Amendment for malicious prosecution and unlawful
pretrial detention.

Filler v. Kellett, 859 F.3d 148, 152 n. 2

(1st Cir. 2017) (citing Manuel v. City of Joliet, Ill., 137
S.Ct. 911, 914-15 (2017) (establishing that a claim under § 1983
for unlawful pretrial detention is cognizable under the Fourth
Amendment); Hernandez-Cuevas v. Taylor, 723 F.3d 91 (1st Cir.
2013) (holding that a “Fourth Amendment malicious prosecution
claim” for unlawful pretrial detention is cognizable under §
1983)).
Here, it seems the premise underlying the false
imprisonment claim is that the defendants, after entering
plaintiff’s residence with a “no knock” warrant, repeatedly and
falsely accused the plaintiff of being a drug dealer.

To the

extent that plaintiff asserts false imprisonment claims against
the defendants, plaintiff has failed to plead facts to show that
the defendants arrested him without probable cause

“[A] warrant

to search for contraband founded on probable cause implicitly
carries with it the limited authority to detain the occupants of

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the premises while a proper search is conducted.”
Summers, 452 U.S. 692, 705 (1981).

Michigan v.

Moreover, the fact that

Plaintiff was later acquitted of the offense for which he was
arrested is irrelevant to the validity of the arrest.

Michigan

v. DeFillippo, 433 U.S. 31, 37 (1979); see also Cocroft v.
Smith, C.A. No. 10-40257-TSH, 2013 WL 1336304 (D. Mass. Mar. 29,
2013).
To the extent plaintiff complains that a third party stole
personal property from his unsecured apartment, the complaint
fails to state a procedural due process claim.

As the Supreme

Court has stated, “the Due Process Clause is simply not
implicated by a negligent act of an official causing unintended
loss of or injury to life, liberty, or property.”
Williams, 474 U.S. 327, 328 (1986).

Daniels v.

Even an intentional

deprivation of property by a state employee “does not constitute
a violation of the procedural requirements of the Due Process
Clause of the Fourteenth Amendment if a meaningful post[-]
deprivation remedy for the loss is available.”
Palmer, 468 U.S. 517, 533 (1984).

Hudson v.

“For intentional, as for

negligent deprivations of property by state employees, the
state's action is not complete until and unless it provides or
refuses to provide a suitable post[-]deprivation remedy.”

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Id.

(footnote omitted).

Here, defendants’ alleged failure to secure

the front door may have been a negligent act or omission causing
a subsequent theft, but that act or omission does not constitute
a due process violation.
Moreover, whether the failure to lock the apartment was
negligence or an intentional act, the Commonwealth of
Massachusetts provides a suitable post-deprivation remedy in the
form of an action for negligence or conversion.

For that

matter, any state law tort claim based on a state officers acts
or omissions must be brought against the Commonwealth pursuant
to the Massachusetts Tort Claims Act.
F.

Municipal Liability

Plaintiff alleges that the City of Brockton and Plymouth
County are responsible for the alleged unconstitutional actions
of their employees.

A municipality or other local government

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. See Monell v. New
York City Dept. of Social Servs., 436 U.S. 658, 692 (1978). But,
under Section 1983, local governments are responsible only for
“their own illegal acts.” Pembaur v. Cincinnati, 475 U.S. 469,
479 (1986) (citing Monell, 436 U.S., at 665–683).

14

They are not

vicariously liable under Section 1983 for their employees'
actions. See id., at 691; Canton v. Harris, 489 U.S. 378, 392
(1989); Board of Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397,
403 (1997) (collecting cases).
For municipalities to be liable under a theory of failure
to train and/or supervise, a “policy or custom must have caused
the deprivation of the plaintiff's constitutional rights and the
municipality must have the requisite level of culpability:
deliberate indifference to the particular constitutional right
of the plaintiff.”
(1st Cir. 2005).

Crete v. City of Lowell, 418 F.3d 54, 66

Here, the Complaint contains no such

allegations.
G. Claims Against the FBI and FBI Special Agent
Decarvalho complains that the FBI and Special Agent
Federico violated his rights under the Fourth, Fifth and
Fourteenth Amendments to the United States Constitution.

To the

extent Decarvalho complains that his rights were violated by
persons acting under color of federal law, the Court construes
such claims as being brought under Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

In

Bivens, the Supreme Court recognized an implied private cause of
action for damages against federal officers who violate a

15

citizen's constitutional rights. See id. at 389.

A Bivens

action is the federal analog to an action against a state actor
under 42 U.S.C. § 1983, though the two types of cases are not
entirely parallel. Hartman v. Moore, 547 U.S. 250, 254 n.2
(2006) (noting that a Bivens action is the federal analog to
claims against state actors brought under Section 1983); Soto–
Torres v. Fraticelli, 654 F.3d 153, 158 (1st Cir. 2011) (“This
implied cause of action is the federal analog to § 1983 suits
against state officials.”).
As a threshold matter, suits against the FBI and Federico
in his official capacity, are barred under the doctrine of
sovereign immunity.

See FDIC v. Meyer, 510 U.S. 471, 475 (1994)

(stating that sovereign immunity shields the Federal Government
and its agencies from suit).

Without a waiver of sovereign

immunity, federal courts lack subject matter jurisdiction over a
plaintiff's claims against the United States or agencies
thereof.

Id. at 475 (noting requirement of waiver).

Any waiver

of sovereign immunity must be “unequivocally expressed” and may
not be implied. United States v. Testan, 424 U.S. 392, 399
(1976).
Because Plaintiff has not asserted any claims for which the
United States has waived sovereign immunity against the FBI

16

defendants in their official capacities, the claims for monetary
damages against defendant Federico in his official capacity are
subject to dismissal on the ground that the court lacks subject
matter jurisdiction over such claims. See Corr. Serv. Corp. v.
Malesko, 534 U.S. 61, 71–72 (2001) (Bivens claim may be brought
against an “offending individual officer” in his or her
individual capacity, but not against the Bureau of Prisons, the
United States, or the individual officer in his or her official
capacity for money damages).

Here, Decarvalho has failed to

demonstrate the requisite waiver of sovereign immunity by the
United States.

Thus, the Bivens claims are barred.

Further, even if the doctrine of sovereign immunity did not
bar the Bivens claims, they are subject to dismissal because
plaintiff has not alleged defendants' personal involvement in
the alleged violation of his rights.

A Bivens action lies

against a defendant only when the plaintiff can show the
defendant's personal involvement in the alleged constitutional
violation. See, e.g., Iqbal, 556 U.S. 662 (2009) (“Because
vicarious liability is inapplicable to Bivens and § 1983 suits,
a plaintiff must plead that each Government-official defendant,
through the official's own individual actions, has violated the
Constitution.”).

Here, plaintiff does not allege any personal

17

involvement by Federico. Thus, any Bivens claims against the FBI
and Federico are subject to dismissal.
Plaintiff also mentions the torts of false imprisonment,
malicious prosecution and loss of property.

Any state law tort

claim based on a federal officers acts or omissions may only be
brought against the United States under the Federal Tort Claims
Act.

Specifically, the Federal Tort Claims Act authorizes suits

against the government to recover damages for injury or loss of
property, or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment, under
circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of
the place where the act or omission occurred.
1346(b)(2).

28 U.S.C. §

The United States is the only proper party in a

suit seeking monetary damages for torts committed by federal
employees. See 28 U.S.C. §§ 1346(b)(1) and 2674.

Even if the

court were to treat the FTCA claim as having been brought
against the United States, it would fail.

An FTCA claim against

the United States may not be asserted in the United States
District Court unless the plaintiff has first exhausted his or
her administrative remedies.

There are no allegations to

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suggest that Decarvalho has exhausted any FTCA claim prior to
filing this action.

Thus, any state law claims against the

federal defendants are subject to dismissal.
V.

Filing an Amended Complaint

Decarvalho’s complaint is subject to dismissal pursuant to
28 U.S.C. §§ 1915(e)(2); 1915A(b)(1),(2).

If plaintiff wishes

to pursue this action, he must file an amended complaint that
clearly identifies who the defendants are, what each defendant
did wrong, and the legal claim against each party.

Upon

receipt, the undersigned will either direct the Clerk to issue
summons or direct the reassignment of the case to a District
Judge for further review.
Any amended complaint must clearly identify plaintiff’s
claims and provide sufficient factual basis for each of the
elements of the claims that he asserts.

The amended complaint

should focus on the legal claims against each defendant and the
underlying factual basis for such claims.

The Court also notes

the “[t]he title of the complaint must name all the parties.”
Fed. R. Civ. P. 10(a).

And the claims in the amended complaint

must be set forth “in numbered paragraphs, each limited as far
as practicable to a single set of circumstances.” Fed. R. Civ.
P. 10(b).

Further, where a plaintiff brings claims against more

19

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).
Because an amended complaint completely supercedes an
original complaint, Brait Builders Corp. v. Massachusetts, Div.
of Capital Asset Mgt., 644 F.3d 5, 9 (1st Cir. 2011), plaintiff
should repeat in the amended complaint anything from the
original complaint that he wishes to be part of the operative
complaint.

Plaintiff may not, for example, incorporate by

reference allegations from the prior complaint into the amended
complaint.

In evaluating the sufficiency of the amended

complaint, the Court will not look to the original complaint.
CONCLUSION
Based on the foregoing, it is hereby ORDERED that:
1.

Plaintiff’s Application [#4] to Proceed Without

Prepayment of Fees is ALLOWED.
2.

Plaintiff is assessed an initial partial filing fee of

$12.46 pursuant to 28 U.S.C. § 1915(b)(1)(A), with the remainder
of the fee, $337.54, to be assessed and collected in accordance
with 28 U.S.C. § 1915(b)(2);
3.

Plaintiff’s Motion [#3] for Appointment of Counsel is

20

DENIED without prejudice;
4.

Plaintiff’s Motion [#2] for Service by Regular First

Class Mail is DENIED without prejudice; and
5.

The Complaint is subject to dismissal pursuant to 28

U.S.C. §§ 1915(e)(2), 1915A(b)(1), (2).

If plaintiff wishes to

pursue this action, he must, within forty-two (42) days from the
date of this Memorandum and Order, file an amended complaint.

SO ORDERED.
/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

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