Davis v. McDonald et al
District Judge Leo T. Sorokin: ORDER entered denying 3 Motion to Appoint Counsel. ; granting 7 , 11 Motions for Leave to Proceed in forma pauperis. If Davis wishes to proceed with this action, he must, within forty-two (42) days, file an amended complaint that cures the above-discussed pleading deficiencies. Failure to comply with this directive may result in dismissal of this action. (PSSA, 3)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOSEPH D. MCDONALD, JR., et al.,
Civil Action No. 21-cv-10571-LTS
MEMORANDUM AND ORDER
July 16, 2021
Pro se plaintiff Charles Davis, who is incarcerated at the Old Colony Correctional
Center, has filed a civil complaint in which he alleges that he received inadequate mental health
care when he was confined at the Plymouth County Correctional Facility (“PCCF”) as a pretrial
detainee. Davis has also filed motions for leave to proceed in forma pauperis and for the
appointment of counsel. For the reasons stated below, the Court will GRANT the motions for
leave to proceed in forma pauperis, deny the motion for counsel, and direct Davis to file an
Motion for Leave to Proceed in Forma Pauperis
Upon review of Davis’s motions for leave to proceed in forma pauperis, the Court
concludes that he is unable to prepay the filing fee and GRANTS the motions. Pursuant to 28
U.S.C. § 1915(b)(1), the Court assesses and initial partial filing fee of $260.80. The remainder
of the filing fee, $89.20, shall be collected in accordance with 28 U.S.C. § 1915(b)(2).
Review of the Complaint
Court’s Authority to Conduct a Preliminary Review of the Complaint
When a plaintiff seeks to file a complaint without prepayment of the filing fee,
summonses do not issue until the Court reviews the complaint pursuant to 28 U.S.C.
§ 1915(e)(2). Similarly, under 28 U.S.C. § 1915A, a prisoner complaint seeking redress from a
governmental entity or its officers or employees are subject to a preliminary screening. Both
these statutes authorize federal courts to dismiss a complaint sua sponte if the claims therein are
frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief
against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2); 28 U.S.C.
§ 1915A(b). In conducting this review, the Court liberally construes the complaint because
Davis is proceeding pro se. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
Davis brings this action against the Plymouth County Sheriff Joseph D. McDonald, Jr.;
Paul Gavoni, Plymouth County Assistant Deputy Sheriff; Captain Nye, the supervisor of the
inner perimeter security team at PCCF; and, PCCF mental health clinicians Any Stock and Sherri
Davis represents that he was confined at PCCF as a pretrial detainee for forty-four
months. He also represents that he is a war veteran who suffers from post-traumatic stress
disorder (“PTSD”) and “MST” for which he had been prescribed medication. 1
The Court is not familiar with the initialism “MST” but assumes that Davis is referring to
military sexual trauma. See https://www.mentalhealth.va.gov/docs/mst_general_factsheet.pdf
(last visited July 14, 2021). To the extent the Court is mistaken in this assumption, the error does
not have any effect on this order.
Davis asserts that he tried “with all his might to explain to these defendants” that he had
had these conditions for over thirty-five years and that he needed his medication. Davis claims
that, after he begged them to do so, the defendants contacted a VA hospital and were informed
that Davis was being truthful about his diagnosis. Davis represents that, approximately four
months later, he received the prescribed medication.
Davis alleges that the defendants “were working in concert with D.A. Courtney Cahill to
try to break the plaintiff so that he would plead guilty.” Compl. ¶ 13. He further avers that “this
delay in him receiving his medication cause the plaintiff to suffer tremendously, which lead [sic]
to a relapse in his mental condition,” which caused him to experience, inter alia, nightmares,
nightsweats[,] sleepless night and severe anxiety.” Id. Davis also claims that, because of the
delay in receiving his medication, his body began to hurt “on a daily basis . . . to the point that it
was impossible for him to concentrate on anything, at a time when he was fighting a court case.”
Id. ¶ 14. Davis asserts that the defendants violated his rights under the Eighth and Fourteenth
amendments to the United States Constitution.
Davis’s complaint fails to state a claim upon which relief may be granted because he does
not adequately identify the alleged misconduct of each defendant. Under Rule 8(a) of the
Federal Rules of Civil Procedure, a complaint must include “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). At a minimum, the
complaint must “give the defendant fair notice of what the plaintiff’s claim is and the grounds
upon which it rests.” Calvi v. Knox County, 470 F.3d 422, 430 (1st Cir. 2006) (quoting
Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61, 66 (1st Cir. 2004)). This
means that the statement of the claim must “at least set forth minimal facts as to who did what to
whom, when, where, and why.” Id. (quoting Educadores, 367 F.3d at 68). The plaintiff’s
obligation to provide the grounds of his claim “requires more than labels and conclusions.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Further, where a litigant brings an action under 42 U.S.C. § 1983, which is the statute
under which a person may sue for the violation of his constitutional rights by state actors, only
individuals who directly participated in the alleged constitutional violation may be held liable. A
warden or other supervisory prison official is not liable for the misconduct of its subordinates
simply on the basis that the official has authority over the persons who directly participated in
the alleged constitutional violation. See Cepero-Rivera v. Fagundo, 414 F.3d 124, 129 (1st Cir.
2005). For example, the Plymouth County Sheriff Barnstable County official cannot be held
liable under § 1983 based solely on the misconduct of a subordinate; the sheriff himself must
have had some form of participation in the alleged misconduct. See id.; see also FelicianoHernandez v. Pereira-Castillo, 663 F.3d 527, 536 (1st Cir. 2011) (“[N]ot every official who is
aware of a problem exhibits deliberate indifference by failing to resolve it.” (internal quotation
Here, Davis’s complaint does not state a claim upon which relief may be granted because
he does not identify the specific misconduct of each individual. Rather, Davis refers collectively
to the “defendants” when the factual allegations do not necessarily support a reasonable
inference that each defendant was involved in every aspect of the alleged misconduct. This
“lumping” of defendants is impermissible when it cannot be reasonably inferred that all
defendants were involved in a particular aspect of the alleged misconduct. See Bagheri v.
Galligan, 160 Fed. Appx. 4, 5 (1st Cir. 2005) (upholding district court’s dismissal of action
where the original complaint did not “state clearly which defendant or defendants committed
each of the alleged wrongful acts” and the plaintiff had failed to cure the pleading deficiencies);
Atuahene v. City of Hartford, 10 Fed. App’x 33, 34 (2d Cir. 2001) (“By lumping all the
defendants together in each claim and providing no factual basis to distinguish their conduct,
[plaintiff]’s complaint failed to satisfy [the] minimum standard” of pleading under Fed. R. Civ.
P. 8(a).). For example, the Court cannot reasonably infer that Sheriff McDonald and the PCCF
mental health clinicians had the same role in denying Davis his medication for four months.
Moreover, because a claim under § 1983 may only be brought against parties that were
personally involved in the alleged constitutional violations, it becomes particularly important that
Davis’s statement of his claim include allegations specific to each defendant.
Davis filed 126 pages of exhibits with his complaint. It may be that, within these pages,
are documents which identify what each defendant allegedly did wrong. However, neither the
Court nor the parties are required to sift through numerous documents to surmise the possible
ground of liability for each defendant. Exhibits to a complaint are permitted, but a plaintiff is not
required at the pleading stage to provide evidence of alleged facts. The body of the complaint
must provide each defendant with notice of the alleged factual allegations against it. Further,
any exhibits must be specifically referenced in the body of the complaint.
Filing of an Amended Complaint
If Davis would like to proceed with this action, he must, within 42 days of the date of this
Memorandum and Order, file an amended complaint in which he clearly identifies the alleged
misconduct of each defendant. Because the amended complaint will completely replace the
original complaint, the amended complaint must contain all claims Davis wishes to assert. The
Court will conduct a preliminary review of the amended complaint before any summonses issue.
Motion for Appointment of Counsel
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). The Court does not have the funds to pay
attorneys to represent plaintiffs in civil cases, and it relies on volunteer attorneys willing to
represent a litigant without compensation.
The appointment of counsel in a non-habeas civil action is only required where a party is
indigent and exceptional circumstances exist such that the denial of counsel will result in
fundamental unfairness impinging on the party’s due process rights. See DesRosiers, 949 F.2d at
23. To determine whether appointment of counsel is required, a court must examine the total
situation, focusing on the merits of the case, the complexity of the legal issues, and the litigant’s
ability to represent himself. See id. at 24.
At this stage of the litigation, exceptional circumstances requiring the appointment of
counsel do not exist. The Court will therefore deny without prejudice the motion for
appointment of counsel. Davis may renew the motion once he has filed an amended complaint,
the Court has ordered that summonses issue, and the defendants have responded to the amended
In accordance with the foregoing, the Court hereby orders:
The motion for leave to proceed in forma pauperis is GRANTED. the Court
assesses and initial partial filing fee of $231.82. The remainder of the filing fee, $118.18, shall
be collected in accordance with 28 U.S.C. § 1915(b)(2). The Clerk shall provide a copy of this
Order to the treasurer of the institution having custody of Davis.
The motion for appointment of counsel is DENIED without prejudice.
If Davis wishes to proceed with this action, he must, within forty-two (42) days,
file an amended complaint that cures the above-discussed pleading deficiencies. Failure to
comply with this directive may result in dismissal of this action.
/s/ Leo T. Sorokin
UNITED STATES DISTRICT JUDGE
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