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Newell v. United States

United States District Court, D. Massachusetts

June 26, 2014

GARY LEE NEWELL, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

MEMORANDUM AND ORDER

GEORGE A. O'TOOLE, Jr., District Judge.

This matter comes before the Court on the plaintiff's (1) complaint; (2) motions for preliminary injunction and temporary restraining order with supporting affidavit; (3) motion for appointment of counsel; (4) motion to compel; and (5) application to proceed without prepayment of fees. For the reasons stated below, this action is dismissed for failure to state a claim upon which relief can be granted and lack of subject matter jurisdiction.

I. Background

On June 17, 2014, Gary Lee Newell ("Newell"), a Massachusetts resident with a Post Office Box in Gardner, Massachusetts, filed his self-prepared complaint titled "complaint for negligence when the plaintiff does not know who is responsible." See Complaint ("Compl."). In his complaint, plaintiff alleges that "[f]or more than 20 years[, ] the Plaintiff has reported the theft and tampering of his mail[, theft of his identity and tampering of his private electronic correspondence]. Id. at ¶ 2. Plaintiff describes how he unsuccessfully registered complaints with local authorities and then, in 2010, with authorities directly in Washington. Id . He complains that his requests for relief have been ignored and that he seeks to have this Court determine the extent of any government involvement. Id . He seeks monetary relief as well as "an immediate injunction to stop all destruction of records of payouts of unclaimed, retrieved, stolen mail or property [under any variation of his name and] declared abandoned under USC Title 39." Id. at p. 2.

Along with his complaint, Newell filed (1) motions for preliminary injunction and temporary restraining order with supporting affidavit; (3) a motion for appointment of counsel; (4) a motion to compel; and (5) an application to proceed without prepayment of fees.

II. Discussion

A. The Application to Proceed Without Prepayment of Fees

Upon review of Newell's financial disclosures, this Court finds he lacks sufficient funds to pay the filing fee for this action. Accordingly, his Application to Proceed Without Prepayment of Fees is ALLOWED.

B. Screening of the Complaint

When a plaintiff is permitted to proceed without prepayment of the filing fee, a summons does not issue until the Court reviews the complaint and determines that it satisfies the substantive requirements of 28 U.S.C. § 1915. Section 1915 authorizes federal courts to dismiss complaints sua sponte if the claims therein lack an arguable basis in law or in fact, 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); Neitzke v. Williams , 490 U.S. 319, 325 (1989) Denton v. Hernandez , 504 U.S. 25, 32-33 (1992); Gonzalez-Gonzalez v. United States , 257 F.3d 31, 37 (1st Cir. 2001).

In conducting the preliminary review, the Court construes pro se pleadings liberally, to avoid inappropriately stringent rules and unnecessary dismissals, and applies a standard analogous to that used in reviewing a motion to dismiss filed under Fed.R.Civ.P. 12(b)(6). See Erickson v. Pardus , 551 U.S. 89, 94 (2007); Castro v. United States , 540 U.S. 375, 381 (2003). However, "a court... will not conjure up unpled allegations'... to state an actionable claim." Restucci v. Clarke , 669 F.Supp.2d 150, at 155 (D. Mass. 2009) (quoting McDonald v. Hall , 610 F.2d 16, 19 (1st Cir. 1979)).

To determine if the complaint states a cognizable claim, the court accepts as true the factual allegations and all reasonable inferences drawn therefrom, even if "seemingly incredible, " Ocasio-Hernández v. Fortuño-Burset , 640 F.3d 1, 12 (1st Cir. 2011), and then determines whether those allegations "state a plausible, not a merely conceivable, case for relief." Sepúlveda-Villarini v. Dep't of Educ. , 628 F.3d 25, 29 (1st Cir. 2010) (citing Ashcroft v. Iqbal , 556 U.S. 662, 678-80 (2009) and Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 570 (2007)). Evaluating the plausibility of a claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense, " without considering the likelihood of success on the merits. Iqbal , 556 U.S. at 679; see also Ocasio-Hernández , 640 F.3d at 12-13 (explaining limits of court's discretionary review).

Finally, a federal court is a court of limited jurisdiction, and may adjudicate only those cases authorized by the Constitution and by Congress. See Kokkonen v. Guardian Life Ins. Co. , 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994). If a complaint is insufficient to support a federal question claim, the action is subject to dismissal pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 12(h)(3) ("If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action."); see Arbaugh v. Y & H Corp. , 546 U.S. 500, 506 (2006) ("The objection that a federal court lacks subject-matter ...


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