Mierzejewski v. Mandell et al
Filing
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Magistrate Judge David H. Hennessy: ORDER entered granting 3 & 7 Motions for Leave to Proceed in forma pauperis; denying 4 Motion to Appoint Counsel; Further, this action shall be DISMISSED within 42 days of the date of this Memorandum and Order for the reasons stated herein unless Plaintiff demonstrates good cause in writingwhy this action should not be dismissed. (Belpedio, Lisa)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
RANDALL H. MIERZEJEWSKI,
Plaintiff,
v.
HON. ANDREW L. MANDELL, et al.,
Defendants.
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CIVIL ACTION
NO. 14-40004-DHH
MEMORANDUM AND ORDER
March 24 , 2014
Hennessy, M.J.
For the reasons set forth below, Plaintiff’s motions for leave to proceed in forma
pauperis are granted; Plaintiff is assessed an obligation to make payments towards the
$350.00 filing fee; Plaintiff’s motion for appointment of counsel is denied; and, within 42
days of the date of this Memorandum and Order, Plaintiff shall show cause why this action
should not be dismissed for the reasons stated below.
I
Background
On January 13, 2014, Plaintiff Randall H. Mierzejewski (“Mierzejewski”), an inmate
at the Worcester County House of Correction (“WCHC”), filed his twenty-five page,
handwritten pro se complaint.1 See Docket No. 2. Named as defendants are the Worcester
County House of Correction, the Worcester County Sheriff, two state court judges, and two
prosecutors. Id. Plaintiff filed a motion for appointment of counsel and two motions for
leave to proceed in forma pauperis. See Docket No2. 3-4, 7.
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Plaintiff was briefly released and then returned to WCHC. See Docket Nos. 8, 11.
The crux of Mierzejewski’s claims involve the alleged failure of the defendants to
provide Mierzejewski with a speedy trial after his 2003 arraignment for breaking and
entering. After his arraignment, Mierzejewski traveled to Florida and, after he failed to
appear for a July 31, 2003 hearing, a warrant issued. While in Florida, Mierzejewski was
subsequently arrested in a separate case, convicted and sentenced. He completed his Florida
sentence in 2006 and returned to Massachusetts, where he was arrested on the default warrant.
Mierzejewski complains that while he was serving his Florida sentence from 20032006, the defendants never issued a detainer for his extradition. He subsequently filed several
motions for new trial and/or to withdraw plea, but Judges Mandell and Zide denied his
motions. Mierzejewski alleges that Judges Mandell and Zide breached their duty to exercise
due diligence, see Complaint, ¶ 14, and that Judge Zide subsequently apologized to him “for
violating his constitutional rights.” Id. at ¶ 12. Mierzejewski alleges that the Worcester
County District Attorney, and an unnamed assistant district attorney, breached their duty to
exercise due diligence. Id. at ¶ 13.
Mierzejewski brings this action under the federal civil rights statute, 42 U.S.C. § 1983,
the Americans with Disabilities Act, 42 U.S.C. § 12182(a), 12101(a), and several state laws.
In a conclusory fashion, Plaintiff complains that the defendants were biased and prejudiced,
negligent and subjected him to discrimination. Compl., ¶¶ 49, 51, 52. For relief, he seeks,
among other things, monetary damages, appointment of counsel, a criminal investigation of
the defendants, and dismissal of his conviction for 2006 “walk-away” escape. Complaint, ¶¶
16, 80.
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II
The Motion for Leave to Proceed In Forma Pauperis
Upon review of Plaintiff’s financial disclosures and transaction report indicating that
he has no substantial assets, this Court finds that he has demonstrated sufficiently that he
lacks funds to pay the filing fee. Because Mierzejewski is a prisoner, he is obligated to make
payments toward the $350.00 filing fee, pursuant to the Prison Litigation Reform Act. See 28
U.S.C. § 1915 (the in forma pauperis statute). He will be assessed an obligation to make
monthly payments of 20 percent of the preceding month's income credited to his account until
the statutory filing fee has been paid in full. See 28 U.S.C. § 1915(b)(2).
III.
The Court May Screen The Complaint
The Prison Litigation Reform Act (“PLRA”), Title VIII of Pub.L. 104-134, 110 Stat.
1321-1375 (1996) includes several provisions which grant this Court the authority to screen
and dismiss prisoner complaints. See 28 U.S.C. § 1915 (proceedings in forma pauperis); 28
U.S.C. § 1915A (screening of suits against governmental officers and entities).
Section 1915 authorizes federal courts to dismiss actions in which a plaintiff seeks to
proceed without prepayment of fees 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 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)(ii) and (iii). In forma pauperis complaints may be
dismissed sua sponte and without notice under section 1915 if the claim is based on an
indisputably meritless legal theory or factual allegations that are clearly baseless. Neitzke,
490 U.S. at 327-328; Denton v. Hernandez, 504 U.S. 25, 32-33 (1992).
Section 1915A authorizes the Court to review prisoner complaints in civil actions in
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which a prisoner seeks redress from a governmental entity, or an officer or employee 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.
In conducting the preliminary screening, Mierzejewski’s pro se complaint is construed
generously. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520
(1972); Instituto de Educ, Universal Corp. v. U.S. Dep’t of Educ., 209 F.3d 18, 23 (1st Cir.
2000). However, even under a generous reading, this action is subject to dismissal for the
reasons set forth below.
IV
Challenge to State Court Convictions
To the extent Mierzejewski seeks federal court review of one, or more, of his state
convictions, such review should be sought through the filing of a petition for writ of habeas
corpus. Relief by way of a writ of habeas corpus extends to a person in custody if the
petitioner can show that he is “in custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2241(c)(3). A state prisoner's federal remedy for challenging
the constitutional validity of his custody is a petition for writ of habeas corpus under § 2254
or § 2241, either of which can be sought only after a petitioner has exhausted state court
remedies with regard to the conviction and sentence. See 28 U.S.C. § 2254(b); Braden v. 30th
Judicial Circuit Court, 410 U.S. 484, 490–91, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973)
(exhaustion also required under 28 U.S.C. § 2241). In Heck v. Humphrey, 512 U.S. 477, 114
S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Supreme Court reiterated that release from custody is
not a remedy available under 42 U.S.C. § 1983. “Habeas corpus is the exclusive remedy for a
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state prisoner who challenges the fact or duration of his confinement and seeks immediate or
speedier release, even though such a claim may come within the literal terms of § 1983.”
Heck, 512 U.S. at 481.
Mierzejewski alleges that his federal habeas petition was dismissed for failure to
exhaust state remedies. Complaint, ¶ 48; Mierzejewski v. Glodis, C.A. No. 07-40273-FDS
(dismissed Apr. 7, 2008). However, he cannot, in this civil complaint, seek habeas relief.
Moreover, to the extent Mierzejewski’s seeks federal review of any final decision of a
state court, this Court lacks subject matter jurisdiction to conduct such review, pursuant to the
Rooker-Feldman doctrine. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). The doctrine precludes a
federal action if the relief requested in that action would effectively reverse a state court
decision or void its holding or if the plaintiff’s claims are “inextricably intertwined” with the
state court's decision. See Johnson v. De Grandy, 512 U.S. 997, 1005-1006 (1994).
Similarly, if the state litigation has not reached a final disposition and is pending, this
Court should not interfere with any pending state court litigation. Rather, this Court should
abstain from judicial review of the pending case. The federal courts have long recognized the
“fundamental policy against federal interference with state criminal proceedings.” Younger
v. Harris, 401 U.S. 37, 46 (1971); In re Justices of the Superior Court Dept. of the
Massachusetts Trial Court, 218 F.3d 11, 16 (1st Cir. 2000).
Here, this Court is without jurisdiction over Mierzejewski’s request for this Court to
review the state proceedings referenced in the complaint .
V.
Federal Court not Authorized to Compel Criminal Investigations
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To the extent Plaintiff seeks to have the Justice Department investigate “the case-inchief against the Defendants, and be criminally charged for civil rights violations,” Compl., at
¶ 84, such relief cannot be granted in this action. Under the U.S. Constitution, it is the
Executive Branch of the federal government, and not the Judicial Branch, that is responsible
for conducting criminal investigations, and bringing criminal charges, if warranted. The
Constitution precludes the federal courts from interfering in these responsibilities of the
Executive Branch. See United States v. Nixon, 418 U.S. 683, 693 (1974) ("the Executive
Branch has exclusive authority and absolute discretion to decide whether to prosecute a
case"); United States v. Smith, 231 F.3d 800, 807 (11th Cir.2000) ("The decision as to which
crimes and criminals to prosecute is entrusted by the Constitution not to the judiciary, but to
the executive who is charged with seeing that laws are enforced."), cert. denied, 532 U.S.
1019 (2001).
Additionally, private citizens lack a judicially cognizable interest in the prosecution or
non-prosecution of another. See, e.g., Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973);
accord Nieves-Ramos v. Gonzalez, 737 F. Supp. 727, 728 (D. P.R. 1990) (same).
VI
The Complaint Fails to State a Claim
Under the Americans With Disabilities Act
To the extent plaintiff brings this action pursuant to the Americans With Disabilities
Act of 1990 ("ADA"), his claims are subject to dismissal. Plaintiff alleges that he was
subjected“to Discriminatory Intent, and Discriminatory Effect [by the defendants] based upon
his criminal history, being an Institutionalized Person, and for his being Disabled American
With Disabilities.” Compl., ¶ 52.
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Title II prohibits discrimination by a “public entity” and Title III prohibits
discrimination in “public accommodations.” 42 U.S.C. §§ 12132, 12182. Title II of the
ADA prohibits discrimination against persons with disabilities by “public entities” which
includes a state’s correctional facilities. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 209-10
(1998). In studying the need for such legislation, Congress found that “historically, society
has tended to isolate and segregate individuals with disabilities, and, despite some
improvements, such forms of discrimination against individuals with disabilities continue to
be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2). Congress noted that the
many forms such discrimination takes include “outright intentional exclusion” as well as the
“failure to make modifications to existing facilities and practices.” 42 U.S.C. § 12101(a)(5).
To state a plausible ADA claim, a plaintiff must demonstrate: “(1) that he is a
qualified individual with a disability; (2) that he was either excluded from participation in or
denied the benefits of some public entity’s services, programs, or activities or was otherwise
discriminated against; and (3) that such exclusion, denial of benefits, or discrimination was by
reason of the plaintiff's disability.” Parker v. Universidad de P.R., 225 F.3d 1, 5 (1st Cir.
2000).
Here, Plaintiff simply complains in a conclusory fashion that he has been subjected to
discrimination. The allegations in the complaint fail to demonstrate that he is a qualified
individual with a disability, that he was discriminated against and that such discrimination
was because of a disability. Thus, the ADA claims are subject to dismissal.
VII
The Complaint Fails to State a Claim
Under the Civil Rights Act, 42 U.S.C. § 1983
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A.
The Worcester County House of Correction is Not a Suable Entity
Mierzejewski names the Worcester County House of Correction as a defendant.
However, WCHC is a building, and is not an entity that can be sued as a “person” under
Section 1983. See, e.g., De La Garza v. Kandiyohi County Jail, No. 01-1966, 18 Fed. Appx.
436, 437 (8th Cir. 2001) (per curiam) (county jail not a suable entity); Mardsen v. Federal
Bureau of Prisons, 856 F. Supp. 832, 836 (S.D.N.Y. 1994) . Thus, the claims against the
WCHC are subject to dismissal.
B.
Sovereign Immunity Bars Official Capacity Claims for
Monetary Damages Based on Violations of 42 U.S.C. § 1983
Mierzejewski’s claims against the sheriff, prosecutors and judges in their official
capacity based on alleged constitutional violations and raised pursuant to 42 U.S.C. § 1983
are barred by the Eleventh Amendment of the United States Constitution. This amendment 2
generally is recognized as a bar to suits in federal courts against a State, its departments and
its agencies, unless the State has consented to suit or Congress has overridden the State’s
immunity. See Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997); Kentucky v.
Graham, 473 U.S. 159, 167 n. 14 (1985); Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per
curiam); Hudson Sav. Bank v. Austin, 479 F.3d 102, 105-06 (1st Cir. 2007). The Eleventh
Amendment also precludes federal courts from hearing state claims brought against state
officials in their official capacities. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
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The Eleventh Amendment provides: “The Judicial power of the United States shall not
be construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. Amend. XI.
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101-02 (1984); J.R. v. Gloria, 593 F.3d 73, 82 (1st Cir. 2010). See Fantini v. Salem State
Coll., 557 F.3d 22, 33 (1st Cir.2009); Johnson v. Rodriguez, 943 F.2d 104, 108 (1st Cir.
1991) (“It is settled beyond peradventure, however, that neither a state agency nor a state
official acting in his official capacity may be sued for damages in a § 1983 action.”).
Here, Mierzejewski presents no circumstances from which a waiver of sovereign
immunity may be inferred as to his § 1983 claims. Accordingly, his claims against the
defendants in their official capacity for monetary damages are subject to dismissal.
C.
Prosecutorial Immunity
Plaintiff claims that he is entitled to damages from the Worcester County District
Attorney and an unidentified Assistant District Attorney. Plaintiff’s claims are barred by the
doctrine of absolute prosecutorial immunity. A district attorney and his assistants are
absolutely immune in a civil rights suit for any action taken pursuant to their role as
prosecutors in preparing for the initiation of judicial proceedings and in presenting the State's
case. See Kalina v. Fletcher, 522 U.S. 118, 129, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997);
Imbler v. Pachtman, 424 U.S. 409, 430–31, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).
Plaintiff's claims are based on their conduct as the State's advocates and they are thus
entitled to absolute prosecutorial immunity. See Imbler, 424 U.S. at 430 (absolute immunity
protected prosecutor from suit for knowingly using perjured testimony and suppressing
material evidence at plaintiff's murder trial); 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)).
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Thus, Plaintiff's complaint fails to state a claim for damages against the Worcester
County District Attorney and an Assistant District Attorney, and such claims are subject to
dismissal since these defendants are absolutely immune.
D.
Judicial Immunity
Mierzejewski’s claims against Judges Mandell and Zide are not legally cognizable
because absolute judicial immunity protects a judge from acts performed within the scope of
his/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.”);
Pierson v. Ray, 386 U.S. 547, 553-554 (1967) (absolute judicial immunity protects integrity
of judicial process); Allard v. Estes, 197 N.E. 884, 886 (1935) (stating that is it “too well
settled to require discussion, that every judge, whether of a higher or lower court, is exempt
from liability to an action for any judgment or decision rendered in the exercise of jurisdiction
vested in him by law.”). “‘Absolute judicial immunity protects judges from ‘civil liability for
any normal and routine judicial act,’ except those taken in the ‘clear absence of all
jurisdiction.’” Goldblatt v. Geiger, No. 10–cv–537–PB, 2011 WL 1362119 (D.N.H. 2011)
quoting Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir.1989) (citing Stump v. Sparkman, 435 U.S.
349, 357 (1978)).
Here, although Mierzejewski may believe that Judges Mandell and Zide erred in their
rulings, there is no basis for concluding that the actions or inactions of these judges were
taken outside the scope of their jurisdiction. See Ricciuti v. Alander, No. 3:03CV708(CFD),
2004 WL 555235, *2 (D. Conn. 2004) (“Acts are judicial in nature if they are (1) normal
judicial functions (2) that occurred in the judge’s court or chambers and were (3) centered
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around a case pending before a judge.”).
Thus, Plaintiff's complaint fails to state a claim for damages against Judges Mandell
and Zide, and such claims are subject to dismissal since these defendants are absolutely
immune.
E.
Claims Against Sheriff Evangelidis
Plaintiff alleges that in 2006, he was sentenced to serve a probation violation at the
Worcester County House of Correction, in the custody of Sheriff Evangelidis, successor to
former Sheriff Glodis. Compl., ¶¶ 9, 15, 49. Plaintiff alleges that the Sheriff, along with the
other defendants, subjected him to vindictive treatment and discrimination. Id. at ¶¶ 50, 52.
Although Sheriff Evangelidis is identified as a defendant, Plaintiff has not identified
any specific wrongdoing or provided specific factual allegations against the Sheriff. Section
1983 requires allegations of personal involvement in the alleged constitutional deprivation as
a prerequisite to recovery. See McKinnon v. Patterson, 568 F.2d 930, 934 (2nd Cir. 1977),
cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978) and Kostka v. Hogg, 560
F.2d 37, 40 (1st Cir. 1977).
"[Section] 1983 does not impose purely supervisory liability; it
aims at persons who have actually abused their positions of authority, and hence only persons
who were directly involved in the wrongdoing may be held liable." Martinez-Velez v.
Rey-Hernandez, 506 F.3d 32, 41 (1st Cir. 2007) (internal quotation marks and citations
omitted).
Because the complaint fails to identify any specific wrongdoing on the part of Sheriff
Evangelidis, the claims against the Sheriff are subject to dismissal for failure to state a claim
upon which relief may be granted.
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VIII
Order to Show Cause
In light of all of the above, this action shall be dismissed within 42 days of the date of
this Memorandum and Order unless Mierzejewski demonstrates good cause in writing why
this action should not be dismissed. Mierzejewski shall provide legal support for his
arguments, and his show cause response shall not exceed ten (10) double-spaced pages.
Failure to comply with this directive will result in a dismissal of this action.
IX.
Plaintiff’s Motion for Appointment of Counsel
Under 28 U.S.C. § 1915, a “court may request an attorney to represent any person
unable to afford counsel.” 28 U.S.C. § 1915(e)(1). The United States Court of Appeals for
the First Circuit provides the following set of factors to consider when determining whether to
appoint counsel to an indigent litigant under § 1915: “[1] the indigent’s ability to conduct
whatever factual investigation is necessary to support his or her claim; [2] the complexity of
the factual and legal issues involved; and [3] the capability of the indigent litigant to present
the case.” Cookish v. Cunningham, 787 F.2d 1, 3 (1st Cir. 1986) (per curiam); see Bemis v.
Kelley, 857 F.2d 14, 16 (1st Cir. 1988). Ultimately, to be eligible for this assistance under 28
U.S.C.
§ 1915, Mierzejewski “must demonstrate that [he is] indigent and that exceptional
circumstances [are] present such that a denial of counsel [is] likely to result in fundamental
unfairness impinging on his due process rights.” DesRosiers v. Moran, 949 F.2d 15, 23 (1st
Cir. 1991). This Court considers the total situation, including the merits of the case, the
complexity of the legal issues, and the litigant’s ability to represent himself. Id. Where this
case is subject to dismissal in its entirety based on the legal impediments discussed above,
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this Court cannot find that exceptional circumstances exist that warrant the expenditure of
scarce pro bono resources. Thus, the motion for appointment of counsel will be denied.
CONCLUSION
Based on the foregoing, it is hereby Ordered that:
1.
Plaintiff’s Motions to Proceed in forma pauperis (Docket Nos. 3, 7) are ALLOWED;
2.
Plaintiff is assessed an obligation to make payments towards the $350.00 filing fee in
accordance with 28 U.S.C. § 1915(b)(2);
3.
Plaintiff’s Motion for Appointment of Counsel (Docket No. 4) is DENIED;
4.
This action shall be DISMISSED within 42 days of the date of this Memorandum and
Order for the reasons stated herein unless Plaintiff demonstrates good cause in writing
why this action should not be dismissed. Failure to comply with the directives
contained in this Memorandum and Order will result in a dismissal of this action;3 and
5.
No summons shall issue pending further order of the Court.
So ordered.
/S/ David H. Hennessy
David H. Hennessy
UNITED STATES MAGISTRATE JUDGE
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This action was assigned pursuant to the Court's Program for Random Assignment of
Civil Cases to Magistrate Judges. Upon receipt of Plaintiff’s response to this Memorandum and
Order, the undersigned will either direct the Clerk to issue summons or direct the reassignment
of the case to a District Judge for further review of Plaintiff’s response.
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