Mierzejewski v. Mandell et al

Filing 20

Magistrate Judge David H. Hennessy: ORDER FOR REASSIGNMENT AND REPORT AND RECOMMENDATION entered. This action shall be REASSIGNED to a District Judge. REPORT AND RECOMMENDATION re 17 Response to Court Order filed by Randall H. Mierzejewski. Recommendation: Plaintiffs Motion to Show Cause (Docket No. 17) be DENIED and that this action be DISMISSED. (PSSA, 4)

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

ORDER FOR REASSIGNMENT AND
REPORT AND RECOMMENDATION
July 21, 2014
Hennessy, M.J.
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 against the Worcester County House of Correction, the
Worcester County Sheriff, two state court judges, and two prosecutors. In brief,
Mierzejewski seeks monetary damages and an investigation into the alleged failure of the
defendants to provide Mierzejewski with a speedy trial after his 2003 arraignment for
breaking and entering.
On March 24, 2014, this Court issued a Memorandum and Order (Docket No. 14)
granting Mierzejewski’s Motion for Leave to Proceed in forma pauperis, denying his motion
for counsel and noting that the complaint failed to state claims under the federal Civil Rights
Act and the Americans with Disabilities Act. The Court explained that the Worcester County
House of Correction is not a suable entity and that sovereign immunity bars official capacity
civil rights claims for monetary damages. Plaintiff was advised that the judges and

prosecutors enjoy immunity from suit and that the claims against Sheriff Evangelidis were
subject to dismissal because they failed to allege his personal involvement in the alleged
constitutional violations.
In light of this, Mierzejewski was directed to show cause within 42 days of the date of
the Memorandum and Order why this action should not be dismissed for failure to state a
claim upon which relief may be granted.
In response, on March 26, 2010, Mierzejewski filed a Motion to Show Cause (Docket
No. 17), in which argues that his complaint should not be dismissed.
ORDER FOR REASSIGNMENT
For the reasons stated in the Court’s March 24th Memorandum and Order, and
plaintiff having failed to show good cause why this action should not be dismissed, this Court
will direct that the file be returned to the Clerk’s Office for REASSIGNMENT to a District
Judge for further proceedings.
RECOMMENDATION TO THE DISTRICT JUDGE
In his Motion to Show Cause, Mierzejewski argues that his complaint should not be
dismissed. See Docket No. 17. He explains that his imprisonment creates an “extreme
hardship and hinders [his] ability to try and maintain a very complex civil action to recover
damages for an erroneous felony conviction, and obstructs meaningful legal research.” Id. at
p. 6. Because of this, he asks for reconsideration of his motion for appointment of counsel.
Id. at p. 9.
Because the Memorandum and Order advised Mierzejewski that his claims are barred
by the Rooker-Feldman doctrine and Heck, he asks for the instant action to be “transferred to

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the state court so that [plaintiff] can file a writ of habeas corpus there, amend his complaint or
renew the complaint in the Superior Court either in Worcester or Suffolk County Superior
Court to preserve the status quo on the date of the filing of this action as of on January 13,
2014.” Id. at p. 8.
Mierzejewski argues that the defendants “lost sovereignty, jurisdiction, and lost the
violation of criminal conduct when, it violated [plaintiff’s] ‘speedy trial rights, when they
failed to take reasonable action to prevent undue delay in brining a defendant to trial.’” Id. at
p. 2. Mierzejewski states that the judge and prosecutors “acts or inactions [were] outside
[the] scope of their jurisdiction.” Id. at p. 3. He alleges that the judge and prosecutors
“should have known that their failure to use ‘due diligence’ to ensure a speedy trial would
violate [plaintiff’s rights].” Id. at p. 4.
Mierzejewski complains that the defendants actions were “unfair and deceptive [in
violation of ] M.G.L. c. 93A” and amounted “to Negligence, Legal Malpractice, by Acts or
failures to Act/Deliberate Indifference to Serious Constitutional Needs in the Fair
Administration of Justice Consistent with Court Rules of Procedure, Procedural Due Process,
Due Process and to the Equal Protection of these Court Rules . . .” Id. at p. 3. He argues that
he raised in his complaint “‘Federal Questions’ as to all defendants, including Sheriff
Evangelidis. Id. at p. 5.
After carefully reviewing Mierzejewski’s Motion to Show Cause, I find that he failed
to demonstrate any reason why this action should not be dismissed. Thus, in accordance with
this Court's order dated March 24, 2014, and the plaintiff not having shown good cause why
this case should not be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A, the Court
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recommends that this action be dismissed.
NOTICE OF RIGHT TO OBJECT
Mierzejewski is hereby advised that, under the provisions of Federal Rule of Civil
Procedure 72, if he objects to this recommendation, he must file specific written objections
thereto with the Clerk of this Court within fourteen days of his receipt of this
recommendation. The written objections must specifically identify the portion of the proposed
recommendation to which objections are made and the basis for such objections.
Mierzejewski is further advised that the United States Court of Appeals for this Circuit has
repeatedly indicated that failure to comply with Rule 72(b) will preclude further appellate
review. See Keating v. Secretary of Health and Human Services, 848 F.2d 271 (1st
Cir.1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir.1986); Scott v.
Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); United States v. Vega, 678 F.2d 376, 378-379
(1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.1980); see
also Thomas v. Arn, 474 U.S. 140 (1985).
CONCLUSION
Based on the foregoing, it is hereby Ordered that:
1.

This action shall be REASSIGNED to a District Judge; and

2.

This Court RECOMMENDS to the District Judge to whom this case is assigned that
Plaintiff’s Motion to Show Cause (Docket No. 17) be DENIED and that this action be
DISMISSED.

So ordered.
/s/ David H. Hennessy
David H. Hennessy
UNITED STATES MAGISTRATE JUDGE
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