Mercado v. Department of Social Services et al

Filing 11

Judge Patti B. Saris: ORDER entered denying 10 Motion to submit evidence. The Amended Complaint is dismissed without prejudice pursuant to 28 U.S.C. §1915(e)(2)(B) for failing to state a claim upon which relief may be granted. The Clerk shall enter a separate order of dismissal. (PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
LESLIE MERCADO, aka Leslie Ann
)
Reis and Leslie Reis Carrington, )
Plaintiff,
)
)
v.
)
)
DEPARTMENT OF SOCIAL
)
SERVICES, et al.,
)
Defendants.
)

Civil Action
No. 23-11140-PBS

MEMORANDUM AND ORDER
November 15, 2023
SARIS, D.J.
In a prior Order, the Court dismissed the Complaint filed
by Plaintiff Leslie Mercado without prejudice and with leave to
file an amended complaint.

For the reasons set forth below, the

Court denies the motion to submit evidence (Dkt. No. 10) and
dismisses the Amended Complaint without prejudice pursuant to 28
U.S.C. §1915(e)(2)(B).
BACKGROUND
Leslie Mercado, a resident of Boston, brings this action
alleging that she was subjected to abuse while a minor in foster
care.

The defendants named in the original complaint were the

Department of Children and Families, a social worker, an
attorney and two individuals identified as foster parents. (Dkt.
No. 1).

By Order dated July 26, 2023, the Court allowed plaintiff
leave to proceed in forma pauperis and found that the complaint
is subject to dismissal pursuant to 28 U.S.C. §1915(e)(2)(B) for
failing to state claim upon which relief can be granted. (Dkt.
No. 8).

Although the complaint named several defendants, the

Court recognized that no factual allegations were directed
against any one defendant. Id.

Additionally, the Court

explained that the defendant social worker and attorney are
immune from suit for damages in their official capacities; the
defendant agency has immunity under the Eleventh Amendment; and
that private conduct, no matter how discriminatory or wrongful,
is generally beyond the reach of 42 U.S.C. § 1983. Id. Plaintiff
was advised that if she wished to proceed with this action, she
may file an amended complaint.

Id.

The amended complaint was timely filed in accordance with
the Court’s July 26, 2023 Order.

(Dkt. No. 9).

Because Mercado

is proceeding in forma pauperis, the amended complaint is
subject to screening pursuant to 28 U.S.C. § 1915(e) and will be
liberally construed because she is self-represented.

See Rodi

v. Southern New England Sch. of Law, 389 F.3d 5, 13 (1st Cir.
2004).   
THE AMENDED COMPLAINT
The Amended Complaint again names the Department of
Children and Families (“DCF”), Mercado’s former foster mother, a
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DCF social worker and a DCF attorney, along with 17 additional
defendants not previously named in the original complaint.
Compl. (Dkt. No. 9).

Am.

The additional defendants are the Boston

Medical Center, Carney Hospital, the Cambridge Health Alliance
Somerville Campus, and DotHouse Health (the “medical
providers”); the Cambridge Juvenile Court, Judge Tyre and Judge
Blitzman (the “judicial defendants”); the Charles H. Taylor
School and Charles Hayden Goodwill Inn School (the “educational
defendants”); Guy Harold Harris, and Delores Coleman (the “DCF
defendants”); Officer Johnson (the “police defendant”); the
Commonwealth of Massachusetts; the “Foster Care System,” the
U.S. Department of Health and Human Services; the Social
Security Office; and Mercado’s former foster sister.

Id. at 1-

3.
Plaintiff seeks to impose liability based on causes of
action pursuant to 42 U.S.C. § 1983, Title VI of the Civil
Rights Act, and 18 U.S.C. §§ 242, 287, 286, 1951, 1031, 1961 and
371.

Id. at 20.

Specifically, plaintiff lists the alleged

violations as follows: (A) the violation of Plaintiff’s
constitutional rights; (B) negligence and gross negligence; (C)
intentional infliction of emotional distress; (D) fraudulent
misrepresentation; (E) violation of child benefits and bad
placement; (F) violation of right to family unity and
reunification; (G) violation of right to proper education; (H)
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the violation of right to truthful information; (I) violation of
right to privacy; (J) violation of right to individual autonomy;
(K) violation of right to proper representation in court; (L)
violation of right to not be subjected to torture and cruel,
inhuman or degrading treatment; (M) violation of right to
truthful and accurate records; (N) violation of right to freedom
from discrimination; (O) violation of right to adequate medical
care; (P) violation of right to freedom of expression; (Q)
violation of right to protection from child abuse; (R) violation
of right to proper name; (S) violation of right to proper
education; (T) violation of right to privacy and
confidentiality; and (U) violation of right to individual
autonomy and self-determination.

Id. at 4-6.

For relief, Mercado seeks unspecified compensatory and
punitive damages; injunctive relief to ensure proper care,
support, and protection of children in state custody;
declaratory relief to establish Mercado’s rights and legal
status; and an order for the Defendants to provide accurate and
truthful records and information.

Id. at 7.

DISCUSSION
As an initial matter, the federal criminal statutes
referend in the Amended Complaint do not provide a  basis for
relief.

Generally speaking, there is no federal right to have

criminal wrongdoers prosecuted.

See Nieves-Ramos v. Gonzalez
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De-Rodriguez, 737 F. Supp. 727, 728 (D.P.R. 1990) (citing Linda
R.S. v. Richard D., 410 U.S. 614, 619 (1973)(“a private citizen
lacks a judicially cognizable interest in the prosecution or non
prosecution of another”)).    The federal criminal statutes
referred to in the Amended Complaint do not confer a private
right of action.

Cent. Bank of Denver v. First Interstate Bank

of Denver, 511 U.S. 164, 190 (1994) (refusing to infer a private
right of action from a “bare criminal statute”); see e.g. Cok v.
Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (per curiam)(stating
that only the United States as prosecutor can bring a complaint
under 18 U.S.C.§§ 241-242).
To the extent plaintiff asserts that defendants are liable
for racketeering, in violation of the Racketeer Influenced and
Corrupt Organization (“RICO”) Act, plaintiff “must allege ‘(1)
conduct, (2) of an enterprise, (3) through ... a pattern ... of
racketeering activity.’”

Home Ortho. Corp. v. Rodríguez, 781

F.3d 521, 528 (1st Cir. 2015) (quoting Kenda Corp. v. Pot O'Gold
Money Leagues, Inc., 329 F.3d 216, 233 (1st Cir. 2003)). While
the Amended Complaint references the RICO statute, it falls
short of alleging facts that, if proven, would establish that
any defendant engaged in two or more predicate acts of
racketeering, conducted by an enterprise, that proximately
caused injury to plaintiff’s business or property interest.

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As to Title VI of the Civil Rights Act of 1964, 42 U.S.C. §
2000D, the Supreme Court has interpreted Section 601 to create a
private right of action for intentional discrimination.
Alexander v. Sandoval, 532 U.S. 275, 279-80 (2001).

However,

Mercado has not sufficiently alleged that she was subject to
intentional discrimination.

Moreover, the Eleventh Amendment

generally bars suits against the State, including its
departments and agencies, unless the State has waived its
immunity or Congress has explicitly overridden it.

United

States v. Mitchell, 445 U.S. 535, 538 (1980).
As to any civil rights claims Mercado seeks to assert
pursuant to 42 U.S.C. § 19831, the Amended Complaint contains
many of the same pleading deficiencies as the original
complaint.

Although Mercado again alleges that she was

subjected to assault and abuse while she was a minor and in
foster, the Amended Complaint fails to direct any specific
factual allegations against any one defendant.

Mercado’s vague

and conclusory allegations are insufficient to state a claim.
See Penalbert-Rosa v. Fortuno-Burset, 631 F.3d 592, 594 (1st
Cir. 2011) (“an adequate complaint must include not only a

“A claim under section 1983 has two essential elements. First,
the challenged conduct must be attributable to a person acting
under color of state law” and “second, the conduct must have
worked a denial of rights secured by the Constitution or by
federal law.” Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir.
1997).  
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plausible claim but also a plausible defendant”).

Plaintiff

makes bald assertions that the Defendants violated her rights
under various laws, but apart from these assertions, she does
not clearly link specific factual allegations of wrongdoing
against each Defendant. Rather, these assertions are generalized
and made as part of a general description of her claims.

The

claims are primarily asserted collectively against the
Defendants, or groups of Defendants, without dates of alleged
actions or inactions taken by individual defendants.

Given the

absence of any specific facts, and only conclusory allegations,
the amended complaint fails to allege a plausible claim for
relief.
The Commonwealth, its agencies and

employees sued in their

official capacities are immune from suite for damages and that
private conduct, no matter how discriminatory or wrongful, is
generally beyond the reach of 42 U.S.C. § 1983.

Under the

judicial immunity doctrine, the claims against the judicial
defendants are not legally cognizable because absolute judicial
immunity protects a judge from acts performed within the scope
of his or her jurisdiction.

Mireles v. Waco, 502 U.S. 9, 11

(1991) (per curiam ) (“[J]udicial immunity is an immunity from
suit, not just from the ultimate assessment of damage.”).
Finally, Mercado now seeks to bring in this action several
different claims against unrelated defendants.
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While Rule 18(a)

of the Federal Rules of Civil Procedure permits Mercado “to
bring multiple claims against a defendant in a single action . .
. it does not permit the joinder of unrelated claims against
different defendants.” Chase v. Chafee, No. 11-586ML, 2011 WL
6826504, at *2 (D.R.I. Dec. 9, 2011), report and recommendation
adopted, No. 11-586 ML, 2011 WL 6826629 (D.R.I. Dec. 28, 2011);
see Spencer v. Bender, No. 08–11528–RGS, 2010 WL 1740957 at *2
(D. Mass. April 28, 2010) (citing George v. Smith, 507 F.3d 605,
607 (7th Cir. 2007)).
CONCLUSION
For the forgoing reasons, it is hereby ordered
1.

The motion to submit evidence (Dkt. No. 10) is DENIED.

2.

The Amended Complaint is dismissed without prejudice

pursuant to 28 U.S.C. §1915(e)(2)(B) for failing to state a
claim upon which relief may be granted.

The Clerk shall enter a

separate order of dismissal.
SO ORDERED.
/s/ Patti B. Saris
PATTI B. SARIS
UNITED STATES DISTRICT JUDGE

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