Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Perrotta v. Osser

United States District Court, D. Massachusetts

September 26, 2014

LISA M. PERROTTA, Plaintiff,
v.
DR. OSSER, et al., Defendants. LISA M. PERROTTA, Plaintiff,
v.
LINDA MAGEE, et al., Defendants.

MEMORANDUM AND ORDER

WILLIAM G. YOUNG, District Judge.

For the reasons set forth below, the Court grants the plaintiff's motions for leave to proceed in forma pauperis and directs the plaintiff to provide information about her capacity to sue.

I. Background

Before the Court are two pleadings filed by pro se litigant Lisa M. Perrotta. In Perrotta v. Osser, C.A. No. 14-10253-WGY, Perrotta filed an amended complaint that is 117 pages long, typed, single-spaced, and contains 1006 numbered paragraphs. She claims that physicians at various hospital and the Department of Mental Health, counseling services, and the Norfolk District Attorney's Office wrongly had her committed and fabricated charges of criminal conduct.[1] In Perrotta v. Magee, C.A. No. 14-11301-WGY, the plaintiff claims that three private individuals wrongly characterized her as "delusional, " which led to the commitments at issue in Perrotta v. Osser.

The plaintiff filed a motion for appointment of counsel in Perrotta v. Osser (docket entry #3). In this motion, she alleges that her doctors and one of the defendants in Perrotta v. Magee conspired to have a guardianship placed on her. In her supplement to the motion (docket entry #5), she makes several references to a guardian. Perrotta states that her property "remains under guardianship"; she "needs more immediate relief from Guardianship matter"; she "is aware that [her] guardianship attorney became aware of [her] circumstance." These references suggest that the plaintiff currently has a legal guardian.

Perrotta seeks leave to proceed in forma pauperis in both cases. In the in forma pauperis motion she filed in Perrotta v. Magee, she represents that a guardian is holding some of her assets.

II. Discussion

A. Motions for Leave to Proceed In Forma Pauperis

Upon review of the motions for leave to proceed in forma pauperis, the Court concludes that the plaintiff has sufficiently demonstrated that she is without income or assets to pay the $400 filing fee in each case. Accordingly, the motions are granted.

B. Capacity to Sue

Because Perrotta has suggested that she is under a guardianship, the Court must consider whether she has legal capacity to bring this action. The capacity of an individual to bring suit in federal court is determined by the law of the individual's domicile. See Fed.R.Civ.P. 17(b)(1). Under Massachusetts law, an incompetent or incapacitated person cannot litigate an action pro se; her guardian other representative must sue on her behalf. See Mass. R. Civ. P. 17(b). If she does not have a legal representative, she may sue by her next of friend or a guardian ad litem. See id.

Thus, if the plaintiff has a legal guardian, she lacks capacity to sue in this Court. Although Rule 17(c) of the Federal Rules of Civil procedure does give a federal court "power to authorize someone other than a lawful representative to sue on behalf of an infant or incompetent person where that representative is unable, unwilling or refuses to act or has interests which conflict with those of the infant or incompetent, " Sam M. ex rel Elliott v. Carcieri , 608 F.3d 77, 85 (1st Cir. 2010) (quoting Ad Hoc Comm. of Concerned Teachers v. Greenburgh No. 11 Union Free Sch. Dist. , 873 F.2d 25, 29 (2d Cir.1989)), the Court declines to take such action in light of the absence of any information about the plaintiff's guardian, his knowledge of these lawsuits, and his reasons for not bringing these lawsuits on Perrotta's behalf. For the same reason, the Court denies the plaintiff's motion for appointment of counsel.

C. Screening of the Complaint

Where, as here, a plaintiff is allowed to proceed without prepayment of the filing fee, summonses do not issue until the Court reviews the complaint and determines that it satisfies the substantive requirements of 28 U.S.C. ยง 1915. This statute authorizes a federal court to dismiss a complaint sua sponte if the claims therein are frivolous, malicious, fail to state a claim on which relief may be ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.