Tavares v. Barnstable County Commissioners et al
Judge Denise J. Casper: ORDER entered denying as moot 3 Motion to Amend; denying 4 Motion ; granting 5 Motion for Leave to Proceed in forma pauperis; denying 8 Motion for Order; denying 2 Motion to Appoint Counsel. If Tavares wishes to pursue this action, he must, within 35 days of this Order, file an amended complaint. Failure to comply with this directive will result in dismissal of the action. [Copy of Order mailed to plaintiff on 3/6/2018.] (PSSA, 3) Modified on 3/6/2018 (PSSA, 3).
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
DANIEL D. TAVARES,
Civil Action No. 17-12497-DJC
COMMISSIONERS, et al.,
MEMORANDUM AND ORDER
March 5, 2018
Pro se litigant Daniel D. Tavares (“Tavares”) has filed a civil complaint, D. 1, in which
he alleges that he was wrongfully convicted in the state district court of larceny by false
pretenses. For the reasons set forth below, the court will grant the plaintiff’s motion for leave to
proceed in forma pauperis and direct the plaintiff to file an amended complaint. The court also
denies without prejudice the plaintiff’s motions for counsel and for certain discovery.
Tavares was convicted in the Barnstable Division of the state’s District Court Department
of possessing counterfeit currency, uttering a counterfeit note, and larceny by false pretenses of
property not exceeding $250 in value. See Commonwealth v. Tavares, 87 Mass. App. Ct. 471,
The Appeals Court of Massachusetts upheld the conviction, see id., and the
Massachusetts Supreme Judicial Court denied further appellate review, see 472 Mass. 1106
(2015). As Tavares points out, the Commonwealth’s position, as set forth in the decision of the
Appeals Court, was that Tavares used a counterfeit $100 bill to obtain gasoline at a service
station. See Compl. ¶ 7 at 2-3.
Tavares brings the present action against the Barnstable County Commissioners, the
Commonwealth of Massachusetts, Barnstable County Sheriff James Cummings, and the
Barnstable County Correctional Facility. Tavares claims that his conviction for larceny by false
pretenses was wrongful because (1) he neither obtained title to the gasoline nor procured a
contract for the same; and (2) using counterfeit money to make a purchase does not meet the
definition of larceny by false pretenses.
He represents that, while serving his sentence for the
conviction, he wrote numerous letters to all of the defendants, informing them that he was
illegally incarcerated and that they were all liable therefor. Tavares further claims that “[o]n
January 6, 2017, . . . the defendants, in all there [sic] infinite wisdom, decided that since they
knew the 1 year served by plaintiff [on the larceny by false pretenses] was illegal. They would
give the 1 year served as JAIL CREDIT’ to plaintiff” in a criminal prosecution against him in
Barnstable Superior Court. Id. ¶ 8 at 5.
Tavares also filed motions for leave to proceed in forma pauperis, D. 5, for appointment
of counsel, D. 2, leave to amend his complaint, D. 3, and for the production of discovery
materials, D. 4, 8.
Motion for Leave to Proceed in Forma Pauperis
Upon review of Tavares’s motion for leave to proceed in forma pauperis, the court
concludes that he has adequately demonstrated his inability to pay the $400 filing fee.
Accordingly, the motion will be GRANTED.
Screening of the Complaint
Because Tavares is proceeding in forma pauperis, the complaint is subject to a
preliminary screening under 28 U.S.C. § 1915(e)(2). This statute authorizes federal courts to
dismiss actions in which a plaintiff seeks to proceed without prepayment of fees if the action is
malicious, frivolous, fails to state a claim upon which relief may be granted, or seeks monetary
relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2). In
conducting this review, the court liberally construes the plaintiff’s complaint because he is
proceeding pro se. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
Here, Tavares has failed to state a claim upon which relief may be granted. The thrust of
the plaintiff’s complaint is that his conviction for larceny by false pretenses was unlawful.
However, to recover for an allegedly unlawful conviction, the underlying conviction must have
been overturned or otherwise invalidated.
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court considered whether a
state prisoner who was serving a sentence for voluntary manslaughter could bring a claim under
42 U.S.C. § 1983 (“§ 1983”) 1 in which the plaintiff alleged that state prosecutors and the police
had violated his rights under the United States Constitution by engaging in an unlawful
investigation leading to the plaintiff’s arrest, knowingly destroying exculpatory evidence, and
causing an unlawful voice identification procedure to be used at trial. See id. at 479. Drawing
upon the common law tort principle that an action for malicious prosecution cannot be
maintained unless the prior criminal proceeding was terminated in favor of the accused, the
In his jurisdictional allegation, Tavares states that the court has jurisdiction under 28 U.S.C.
§ 1332 and § 1983. See Compl. ¶ 6. Because 28 U.S.C. § 1332 only confers jurisdiction on this
court where the parties are citizens of different states, the court relies on its jurisdiction under 28
U.S.C. § 1331, which gives federal courts jurisdiction over claims arising out of federal law.
The court assumes that Tavares is bringing this action under § 1983, which provides a right of
action against a person acting under color of state law who has violated an individual’s rights
under federal law.
Court held that “in order to recover damages for allegedly unconstitutional conviction or
imprisonment . . . a § 1983 plaintiff must prove that the conviction or sentence has been reversed
on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal court’s issuance of a writ of habeas
corpus.” Id. at 484, 486-87. 2
Here, the “favorable termination” rule of Heck appears to bar this action. Success on the
merits of Tavares’s claim would imply the invalidity of his conviction for larceny by false
pretenses, and he has not pled facts from which the court can reasonably infer that his conviction
for that crime has been invalidated. The plaintiff does claim that defendants “recognize[ed]” his
conviction for larceny by false pretenses was illegal and consequently credited his time served on
that conviction to another criminal case. However, this assertion is somewhat vague and may
only reflect the plaintiff’s speculation concerning the reason for the crediting of jail time. To
overcome the “favorable termination” rule of Heck, Tavares must specifically identify how his
conviction for larceny by false pretenses was “reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination, or called into
question by a federal court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. at 487.
Filing of an Amended Complaint
If Tavares wishes to prosecute this action, he must file an amended complaint in which he
alleges facts that, if true, show that his claim is not barred by the “favorable termination” rule of
Heck. As an amended complaint completely replaces the original complaint, see Connectu LLC
v. Zuckerberg, 522 F.3d 82, 91 (1st Cir. 2008), Tavares should repeat in the amended complaint
Indeed, “a § 1983 cause of action for damages attributable to an unconstitutional conviction or
sentence does not accrue until the conviction or sentence has been invalidated.” Heck, 512 U.S.
any allegations in the original complaint that he wishes to be part of the operative complaint.
The claims in a 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).
In drafting the amended complaint, the plaintiff must keep in mind requirements for
stating a claim under § 1983. “It is well-established that ‘only those individuals who participated
in the conduct that deprived the plaintiff of his rights can be held liable.’” Velez-Rivera v.
Agosto-Alicea, 437 F.3d 146, 156 (1st Cir. 2006) (quoting Cepero-Rivera v. Fagundo, 414 F.3d
124, 129 (1st Cir. 2005)). “In § 1983 cases, ‘supervisors are not automatically liable for the
misconduct of those under their command. A plaintiff must show an affirmative link between
the subordinate officer and the supervisor, whether through direct participation or through
conduct that amounts to condonation or tacit authorization.’” Id. (quoting Carmona v. Toledo,
215 F.3d 124, 132 (1st Cir. 2000)). Where the defendant is a municipal government, this means
that the plaintiff must show that the “execution of a government’s policy or custom . . .
inflict[ed] the injury.” Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 694 (1978).
Thus, to state a § 1983 claim, Tavares must allege specific facts from which the court may
reasonably infer that a particular defendant was directly involved in the violation of the
plaintiff’s federal rights.
Further, two of the defendants listed in the original complaint are not subject to suit under
§ 1983. Tavares names the Commonwealth of Massachusetts as a defendant, but a state is not a
“person” within the meaning of § 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58,
71 (1989). The Barnstable County Correctional Facility is only a building and therefore is not a
suable entity. See, e.g., Owens v. Scott County Jail, 328 F.3d 1026, 1027 (8th Cir. 2003) (per
Other Pending Motions
Motion for Appointment of Counsel
The court will deny without prejudice the motion for appointment of counsel. Under 28
U.S.C. § 1915(e)(1), the court “may request an attorney to represent any person unable to afford
counsel.” 28 U.S.C. §1915(e)(1). However, a civil plaintiff lacks a constitutional right to free
counsel. See DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991). To qualify for appointment
of counsel, a party must be indigent and exceptional circumstances must exist such that the
denial of counsel will result in fundamental unfairness impinging on the party’s due process
rights. See id.
As set forth above, Tavares has failed to state a claim upon which relief may be granted,
and, if the conviction he challenges has not been invalidated, he will be unable to do so. Thus, at
present, exceptional circumstances justifying the appointment of pro bono counsel are not
present. Tavares may renew the motion if he states a viable claim in an amended complaint and
the court allows summonses to issue and the defendants respond to the complaint.
Motion to Amend the Complaint
Because the court will require Tavares to file an amended complaint, the court finds that
his motion to amend is moot.
Motions Concerning Discovery
The court will deny both motions concerning discovery materials. The motions are
premature because summonses have not issued pending the court’s preliminary review of the
amended complaint. Moreover, discovery requests are generally not filed in court unless they
are the subject of a discovery dispute. Finally, to the extent Tavares believes that he is now
being prosecuted in retaliation for having filed this lawsuit, he should address the matter in
criminal proceeding at issue. The court will not take any action that would needlessly interfere
with a pending state criminal prosecution. See In re Justices of Superior Court Dept. of Mass.
Trial Court, 218 F.3d 11, 16 (1st Cir. 2000) (noting that “federal courts have long recognized
‘the fundamental policy against federal interference with state criminal proceedings’” (quoting
Younger v. Harris, 401 U.S. 37, 46 (1971))).
For the foregoing reasons, the Court rules as follows:
The motion for leave to proceed in forma pauperis, D. 5, is GRANTED;
If Tavares wishes to pursue this action, he must, within 35 days of this Order, file
an amended complaint. Failure to comply with this directive will result in dismissal of the
The motion for appointment of counsel, D. 2, is DENIED WITHOUT
The court DENIES AS MOOT the motion to amend, D. 3.
The motions for certain discovery, D. 4 and D. 8, are DENIED.
/s/ Denise J. Casper
United States District Judge
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