Dubois et al v. Alves et al

Filing 25

Judge Richard G. Stearns: MEMORANDUM AND ORDER entered granting 20 Motion for Leave to Proceed in forma pauperis; denying 24 Motion for court's assistance to obtain party addresses. The Amended Complaint is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A. The Clerk shall send the standard Notice to Prison form to the Treasurers Office at MCI Norfolk and enter a separate order of dismissal. (PSSA, 4)

Case 1:22-cv-11203-RGS Document 25 Filed 04/24/23 Page 1 of 16

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 22-11203-RGS
PAUL DUBOIS, et al.
v.
NELSON V. ALVES, et al.
MEMORANDUM AND ORDER
April 24, 2023
For the reasons set forth below, plaintiff’s motion for leave to proceed
in forma pauperis is granted, plaintiff is assessed an initial, partial filing fee
pursuant to 28 U.S.C. § 1915(b)(1)(B), plaintiff’s motion for court’s assistance
to obtain party addresses is denied, and the amended complaint is dismissed
pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A. The Clerk shall send the standard
Notice to Prison form to the Treasurer’s Office at MCI Norfolk.
BACKGROUND
On July 22, 2022, Paul DuBois, currently in custody at MCI Norfolk,
filed a pro se civil rights complaint seeking relief under 42 U.S.C. § 1983. See
Dkt. No. 1. By Memorandum and Order dated August 22, 2022, the court
denied several motions and plaintiff was ordered to resolve the filing fee and
file an amended complaint that sets forth a plausible claim upon which relief

Case 1:22-cv-11203-RGS Document 25 Filed 04/24/23 Page 2 of 16

may be granted. Dkt. No. 7.

DuBois subsequently filed with the United

States Court of Appeals for the First Circuit an interlocutory appeal which
was dismissed on December 22, 2022. Dkt. No. 14. This court granted
DuBois until April 1, 2023 to comply with the directives of the court’s earlier
orders. Dkt. No. 19.
Now before the court are DuBois’ motion for leave to proceed in forma
pauperis, affidavit, prison account statement, amended complaint, and
motion for court’s assistance to obtain party addresses. Dkt. Nos. 20-24.
As noted by the First Circuit in the December 22, 2022 Judgment, Dkt.
No. 14, DuBois was convicted of murder for the fatal shooting of a social
worker in 1996 and has challenged his imprisonment based on allegations
that he was unlawfully extradited from Missouri. The 97-page amended
complaint is brought pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1738. Dkt.
No. 23. The amended complaint names 36 defendants1 and is accompanied

The amended complaint names the following 36 defendants: (1)
Nelson v. Alves, (2) the Commonwealth of Massachusetts, (3) Claudia
Dubois, (4) Michael O’Keefe, (5) James Cummings, (6) Thomas Cummings,
(7) John Kotfila, (8) Robert Knott, Jr., (9) James Plath, (10) Brian Glenny,
(11) J. Drew Segedelli, (12) Stephen Paul Maidman, (13) Scott Nickerson, (14)
Scott Colgan, (15) Denise Simonini, (16) Deborah Patterson, (17) Karen R.
Depalma, (18) Neil W. Heiger, (19) Catherine Becker Good; (20) Neil S.
Cohen; (21) Lawrence P. Cohen; (22) Kathleen Higgins, (23) Mary Rose, (24)
Lori Meads, (25) Leslie J. Silva, (26) Terence Malone, (27) Seamen’s Bank,
(28) Salem Five Mortgage Co., (29) Salem Five Savings Bank, (30) Citizens
Bank, (31) 6 Amber Way, N. Truro, Massachusetts, (32) 1460 Massasoit Rd,
1

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by almost 200 pages of exhibits. Id. DuBois alleges that all of the named
defendants conspired and acted in concert to violate his civil rights. Plaintiff
implicates almost everyone involved in his criminal prosecution, including
prosecutors, defense counsel, and witnesses. Specifically, DuBois states that
beginning on January 14, 2003, and continuing through the present, the
Commonwealth “conspired with members of the bar and with private
citizens and with entities and with government agencies and with
government associations to effectuate an unjust arrest, prosecution and
imprisonment of the plaintiff.” Id. at 1 (introduction). DuBois further states
that “in its’ quest, [the Commonwealth] did violate the plaintiff’s inherent
and vested constitutional and civil rights to due process of law, equal
protections, full faith and credit, and property ownership relative to his
arrest, detainments, prosecution and imprisonment in a scheme designed to
default the plaintiff, his children, his family and the public.” Id. at p. 2. For
relief, DuBois seeks “damages along with equitable relief in the return of his
real property, among other things, and seeks a trial by jury on all issues
claimed.” Id.

N. Eastham,
Massachusetts,
Massachusetts
Massachusetts.

Massachusetts, (33) 4925 State Hwy, N. Eastham,
(34) 4955 State Hwy., N. Eastham, Massachusetts, (35)
State Police Association, and (36) Barnstable County,
See Dkt. No. 23.
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On June 5, 2003, DuBois was arrested in Missouri “without a felony
fugitive warrant.” Id. at ¶ 8. DuBois alleges that several months earlier, on
September 25, 2002, Claudia Dubois “turned a defaced gun over to” the
Massachusetts State Police.” Id. at ¶ 3. A few months later, on January 14,
2003, a search warrant application was filed in state court to “receive” a gun
from Claudia Dubois, despite the fact that the gun had already “been in
possession and control” since September 25, 2002. Id. ¶ 4. DuBois contends
that on October 1, 2004, “a Nolle Prosequi [was entered onto plaintiff’s]
Superior Ct Docket Report for the Commonwealth’s gun charge that never
had existed in validity at either the lower district court or Superior Ct states.”
Id. at ¶ 44.
Less than two weeks after the search warrant application was filed, on
January 24, 2003, attorney Karen Depalma received a municipal lien against
6 Amber Way in North Truro which plaintiff contends was used to provide
equitable “security” for the state’s subsequent acquisition of 4925 State
Highway as well as the “takeover of 1460 Massasoit Rd [from the state’s trial
witnesses].” Id. at ¶ 5. DuBois contends that the owner of 6 Amber Way
became the “State’s private citizen stand-in (straw) owner of County (public)
record.” Id.

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DuBois alleges that on June 2, 2003, 1460 Massasoit Rd went into
default at the Boston Land Court.” Id. at ¶ 6. In 2002, Claudia Dubois and
Ursula Panzarella secured a mortgage from Citizens Bank for the purchase
of 4925 State Highway.

Id. DuBois alleges that the mortgage was

retroactively assigned to the Mortgage Electronic Registration System in an
effort “to conceal a Citizens Bank of Massachusetts action that could provide
a connection to the plaintiff’s joint equity line account with Claudia DuBois
(defendant) on 4955 State Hwy (A. 5), for which [plaintiff] will be arrested
and booked at James Cummings’ Barnstable County Jail facility.”

Id.

DuBois avers that on April 19, 2005, a $200,000 mortgage issued by Salem
Five Mortgage Co on 4925 State Hwy to Leslie J. Silva is made subordinate
to the prior July 08, 2004 Seamans bank $20,000 mortgage issued to both
Leslie J. Silva and her counterpart Leslie J. Meads as dual grantors each.”
Id. at ¶ 46.
DuBois claims that although the property at 1460 Massasoit Road was
recorded as closed on June 10, 2003, id. at ¶ 11, a docket report obtained by
plaintiff in 2005 omitted “evidence that the case had been docketed ‘closed’
on June 10, 2003.” Id. On June 13, 2003, 4925 State Highway was conveyed
“as a $200,000. private party quitclaim deed transfer [from Claudia DuBois
and Ursula Panzarell to Leslie Meads] along with a Municipal Lien applied
5

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for by Karen R. Depalma.” Id. at ¶ 12. DuBois contends that such forfeiture
would require “the pre-recordance [p]ayment and collection of excise.” Id.
at ¶ 12(a). DuBois alleges that on June 16, 2003, the Commonwealth,
through Karen Depalma, “transferred 4925 State Hwy’s equity via a
Massachusetts Charter Salem Five Mortgage Co. mortgage to its’ straw …”
Id. at ¶ 13. DuBois contends that the “transferred equity” and subsequently
recorded deed violated “the plaintiff’s rights to full faith and credit.” Id. at ¶
13(a). On June 28, 2005, a mortgage issued on 1460 Massasoit Road from
Lower Cape Cod Community Development. Id. ¶ 49. DuBois avers that in
2010 and 2012, property taxes for 4955 State Hwy is “paid by check by the
plaintiff and Claudia Dubois (C/O Terence Malone).” Id. at ¶ 74. DuBois
alleges that in 2016 his “seized joint equity line account with Citizens Bank f
Massachusetts [foreclosed] being used to pay his half share of Town property
taxes ran dry – forcing the State to cede cover of its’ ownership status
[t]hrough Terence Malone [straw private citizen] on County Land court
Record via a fraudulent recordance of a Town of Eastham, MA tax seizure
deed to [s]how a public record town ‘taking’ of 4955 State Hwy in order to
cease tax collecting against same as State’s [o]nly [r]emedy to cease
collection of taxes in the plaintiff’s name.” Id. at ¶ 76.

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On June 2, 2003, the same day as the mortgage default, DuBois alleges
that law enforcement sought, without warrant, plaintiff’s “cell phone tower
site records.” Id. at ¶ 6(a).

DuBois contends that the cell phone records

were sought for a “2003 grand jury investigation to which there is no record.”
Id. DuBois claims that law enforcement used “the Superior Court to commit
fraud and illegally obtain the plaintiff’s cell phone site records in order to
locate him for warrantless arrest.” Id.
DuBois asserts that on the following day, June 3, 2003, Massachusetts
law enforcement contacted the Missouri Sheriff’s Department seeking
assistance in locating the plaintiff. Id. ¶ 7(a). DuBois complains that before
his arrest, the Committee for Public Counsel Services assigned a defense
attorney “for the plaintiff’s intended June 20, 2003 warrantless arrest
process’ . . . .” Id. ¶ 14. DuBois alleges that on June 19, 2003, he was
transported from Missouri to Massachusetts. Id. at ¶ 15. On June 20, 2003,
DuBois was brought before the Barnstable District Court for his
arraignment. Id. at ¶ 16. DuBois contends that he was not “booked” under
the district court “docket case #0326CR001197” but under “Superior Ct’s
Crim/Civ Combined cases Docket Number BACR2003-00087 as a
consolidation docket with the lower Courts’ [transferred] Criminal case that
will be referenced by the State under #0372CR00087.” Id. at ¶ 17(a).
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DuBois asserts that on January 31, 2006, an assistant district attorney
filed an affidavit stating that no potentially exculpatory evidence was not
turned over to plaintiff’s defense counsel. Id. at ¶ 51. The following month,
on February 1, 2006, Dubois’ defense counsel “allegedly filed an Affidavit
(for the State) giving his reason [why] he had not called a certain witness.”
Id. at ¶ 52.
The Amended Complaint is divided into 7 “claims for relief.” As best
can be gleaned from the allegations, the seven claims are as follows: Claim I
(65- 68) concerns conspiracy to defraud plaintiff and take possession of
plaintiff’s estate located 4955 State Hwy in North Eastham; Claim II (68 -71)
concerns conspiracy to unlawfully extradite plaintiff from Missouri to
Massachusetts for the secret purpose of seizing plaintiff’s North Eastham
estate; Claim III (71- 76) concerns the foreclosure of plaintiff’s property and
the use of victim assistance and reward monies for transfer of property
ownership; Claim IV (76 – 77) concerns an alleged conspiracy among the
prosecutor and defense counsel as evidenced by an affidavit signed by these
parties and presented to plaintiff as if to appear as if the affidavit was filed in
court; Claim V (78 – 81) concerns plaintiff’s inability to pay the balance due
on his equity line of credit due to his detention in 2003 and trial in 2004 and
plaintiff’s subsequent default and foreclosure; Claim VI (82 – 84) concerns
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the

state

court

record

and

plaintiff’s

allegations

of

insufficient

documentation; and Claim VII (84-89) concerns alleged harm to plaintiff
based on documents in the state court record that are not validated by
judicial authority and plaintiff having been assigned defense counsel he
deems to be an adversary disguised as counsel.
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
Because Dubois is a prisoner-plaintiff, his motion for leave to proceed
in forma pauperis must be accompanied by “a certified copy of the trust fund
account statement. . . for the 6-month period immediately preceding the
filing of the complaint . . . obtained from the appropriate official of each
prison at which the prisoner is or was confined” so that the court may
determine the initial partial filing fee and subsequent monthly payments
required for the filing fee as required under the Prison Litigation Reform Act.
28 U.S.C. § 1915(a)(2), (b).

For Dubois, the relevant 6-month period is

February 2022 to July 2022. The prison account statement filed by Dubois
covers the period from August 1, 2022 through February 22, 2023, see Dkt.
No. 22, so includes no information for the six month period preceding the
filing of this action. Accordingly, the court calculates Dubois’ filing fee
obligation based upon the information provided for the six-month period
following the filing of the complaint (August 2022 through January 2023).
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Upon review of Dubois’ prison account statement, and based upon the
average monthly deposits for the six month period beginning August 1, 2022
and continuing through January 31, 2023, Dubois is assessed an initial,
partial filing fee of $36.12 pursuant to 28 U.S.C. § 1915(b)(1)(B). The
remainder of the fee, $313.88, is to be assessed and collected in accordance
with 28 U.S.C. § 1915(b)(2). The Clerk shall send the standard Notice to
Prison form to the Treasurer’s Office at MCI Norfolk. If Dubois seeks
modification of the assessment of this filing fee, he may file a motion
demonstrating good cause for any requested modification.
DISCUSSION
In an effort to cure the pleading deficiencies of the original 2-page
complaint, DuBois filed a 97-page Amended Complaint asserting claims
under the following two statues: 28 U.S.C. § 1738 and 42 U.S.C. § 1983. Even
liberally construing the Amended Complaint because DuBois is proceeding
pro se, Haines v Kerner, 404 U.S. 519, 520 (1972), the court is compelled to
dismiss for failure to state a claim upon which relief may be granted. Because
most of the allegations concern actions and inactions surrounding DuBois’
extradition and prosecution, his claims are barred by the favorable
termination rule of Heck v. Humphrey.

Additionally, the allegations of

conspiracy are too conclusory to state a claim upon which relief may be
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granted and, in any event, are barred by the applicable statute of limitations.
Finally, many defendants are immune from suit or not state actors subject to
liability under Section 1983.
28 U.S.C. § 1738 is one of two statutes under which plaintiff moves to
seek his desired relief. Section 1738 generally requires “federal courts to give
preclusive effect to state-court judgments whenever the courts of the State
from which the judgments emerged would do so.” Allen v. McCurry, 449
U.S. 90, 96 (1980). However, Section 1738 does not provide a private right
of action. See Griffith v. Paran LLP, No. 21-01314, 2021 WL 4123805, at *2
(E.D. Cal. Sept. 9, 2021), report and recommendation vacated, No. 21-01314,
2021 WL 4442881 (E.D. Cal. Sept. 28, 2021) (citing People of State of
California ex rel. McColgan v. Bruce, 129 F.2d 421, 424 (9th Cir. 1942))
(“Neither the Full Faith and Credit Clause of the U.S. Constitution nor the
corresponding statute, 28 U.S.C. § 1738, is an independent basis for federal
court jurisdiction, and neither provides a private right of action.”). Where a
state court has provided fair procedures for determining constitutional
claims, the state court's determination has preclusive effect and bars
relitigation of the same issue by the same party in federal court. See Allen,
449 U.S. at 96.

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The doctrines of res judicata, or claim preclusion, and of collateral
estoppel, or issue preclusion, apply in civil rights actions brought pursuant
to section 1983. See Johnson v. Mahoney, 424 F.3d 83, 93 (1st Cir. 2005)
(issue preclusion); Spencer v. Dookhan, No. 1:16-cv-12076, 2017 WL
2785423, at *4 (D. Mass. Jun. 27, 2017) (claim preclusion). Under both
doctrines, the court is required to “give to state-court judgments the same
preclusive effect as would be given by the courts of the state from which the
judgments emerged.” Johnson, 424 F.3d at 93.
Moreover, DuBois’ claims are barred because, if proven, they would
necessarily invalidate his conviction. DuBois fails to state a claim upon
which relief may be granted because he is in essence challenging an intact
sentence and conviction.

“[I]n order to recover damages for allegedly

unconstitutional conviction or imprisonment . . . a [civil rights] 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.” Heck v. Humphrey, 512 U.S. 477, 48687 (1994). In a civil rights case, this so-called “favorable termination” rule
applies not only where the plaintiff expressly claims that his conviction or
sentence is invalid, but wherever “a judgment in favor of the plaintiff would
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necessarily imply the invalidity of his conviction or sentence.” Id. at 487.
Because a judgment in favor of DuBois would imply the invalidity of his
conviction or sentence, where that conviction still stands, his claims are
barred.2 See Commonwealth v. DuBois, 451 Mass. 20 (2008) (affirming
first-degree murder conviction and affirming denial of motion for new trial).
Notwithstanding, Dubois’ factual allegations are too conclusory and
are not sufficient to state a conspiracy claim under 42 U.S.C. § 1983. Many
of the actions that he attributes to the various defendants are routine
occurrences in legal and real estate proceedings. The Amended Complaint
is devoid of specific factual allegations which would support an inference that
any of the defendants conspired together to violate DuBois’ constitutional
rights.
Also, DuBois’ Section 1983 claims are untimely. For purposes of
limitations related to Section 1983 claims, federal courts borrow the most
closely analogous state statute of limitations, which in Massachusetts is three

The Supreme Court has made clear that “habeas corpus is the
exclusive remedy for a state prisoner who challenges the fact or duration of
his confinement ... even though such a claim may come within the literal
terms of § 1983.” Heck, 512 U.S. at 481 (citing Preiser v. Rodriguez, 411 U.S.
475 (1973); see also Davis v. Schifone, 185 F. Supp. 2d 95, 100 (D. Mass.
2002) (“Under Heck, the principle barring collateral attacks ... is not
rendered inapplicable by the fortuity that a convicted criminal is no longer
incarcerated.” (internal quotation marks and citations omitted) (alteration
in original)).
2

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years. See Owens v. Okure, 488 U.S. 235, 249-50 (1989) (holding that
Section 1983 actions are governed by the residual or general personal injury
statute of limitations in states with more than one statute of limitations);
G.L. ch. 260, § 2A (“Except as otherwise provided, actions of tort . . . shall be
commenced only within three years next after the cause of action accrues.”).
According to DuBois’ allegations, he was extradited in 2003 and convicted in
2004. DuBois alleges that a relinquishment of land was signed in 2012, see
Am. Compl. ¶ 75, and that certain property taxes were paid in 2016 through
the use of his former joint equity line account with Citizens Bank. Id. at ¶ 76.
As this action was not filed until July 22, 2022, these claims are untimely.
Finally, DuBois’ claims against the Commonwealth and its agencies are
subject to dismissal because they have immunity under the Eleventh
Amendment which is an absolute bar to the imposition of liability upon the
state and its state officers and agencies. Prosecutors are entitled to absolute
immunity from damages for initiating a prosecution and in presenting the
state’s case. See Imbler v. Pachtman, 424 U.S. 409, 431 (1976); Goldstein v.
Galvin, 719 F.3d 16, 24 (1st Cir. 2013) (“The protection afforded by an
absolute immunity endures even if the official acted maliciously and
corruptly in exercising his judicial or prosecutorial functions.”) (internal
quotation marks omitted). Private parties who are not shown to have acted
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under state law cannot be held liable under Section 1983 including defense
attorneys, whether court-appointed or privately retained. See Polk Cty. v.
Dodson, 454 U.S. 312, 318 (1981) (“a lawyer representing a client is not, by
virtue of being an officer of the court, a state actor ‘under color of state law’
within the meaning of § 1983.”). Finally, witnesses who testify in state court
proceedings are immune from Section 1983 liability. See Briscoe v. LaHue,
460 U.S. 325 (1983) (holding that all trial witnesses are immune from
Section 1983 liability arising from their testimony). Also, being a participant
in litigation or cooperating with a state attorney during a legal proceeding
does not make a private party a co-conspirator or joint actor with the state.
See Moldowan v. City of Warren, 578 F.3d 351, 395 (6th Cir. 2009); Dennis
v. Sparks, 449 U.S. 24, 28 (1980).
ORDER
Accordingly, for the reasons stated herein:
1.

DuBois’ motion (Dkt. No. 20) for leave to proceed in forma

pauperis is ALLOWED. Pursuant to 28 U.S.C. § 1915(b)(1), an initial partial
filing fee of $36.12 is assessed. The remaining $313.88 shall be collected in
accordance with 28 U.S.C. § 1915(b)(2). The Clerk shall send the standard
Notice to Prison form to the Treasurer’s Office at MCI Norfolk.

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2.

DuBois’ motion (Dkt. No. 24) for the court’s assistance to obtain

party addresses is DENIED.
3.

The Amended Complaint is dismissed pursuant to 28 U.S.C. §§

1915(e)(2), 1915A. The Clerk shall enter a separate order of dismissal.
SO ORDERED.
/s/ RICHARD G. STEARNS
UNITED STATES DISTRICT JUDGE

16