United States District Court, D. Massachusetts
BARRY H. SPENCER, Plaintiff,
ANNIE DOOKHAN, et al., Defendants.
MEMORANDUM AND ORDER
DENISE J. CASPER, District Judge.
For the reasons stated below, the Court (1) grants the plaintiff's motion for leave to proceed in forma pauperis; (2) denies without prejudice the defendants' motions to dismiss; (3) denies the various motions to amend and the motions for joinder; (4) denies the various motions to extend time as moot; (5) denies the plaintiff's motion for declaratory judgment; and (6) dismisses certain of plaintiff's claims and stays this matter as to the remainder of these claims.
Plaintiff Barry H. Spencer ("Spencer"), who is incarcerated at the Old Colony Correctional Center, brings this action challenging past and pending criminal drug prosecutions against him in federal and state court. According to the operative amended complaint (D. 9), in each of the state criminal prosecutions (1) undercover police officers or informants induced Spencer to provide drugs; (2) Boston police officers physically assaulted him prior to and during his arrest; and (3) the evidence relied upon by prosecutors that Spencer was in possession of illegal drugs was fabricated, as it was tested by Annie Dookhan or others at the Massachusetts Department of Public Health Hinton Drug Laboratory ("Hinton Lab"); (4) prosecutors (in connection with law enforcement officers) engaged in malicious prosecution; and that (5) his counsel provided ineffective assistance of counsel. In the first prosecution, SUCR2004-10017, see Amend. Compl. (D. 9 at ¶¶ 72-93), Spencer was acquitted on a distribution charge but convicted on the lesser offense of possession. The Superior Court docket indicates that the jury returned its verdict on July 21, 2006 and that subsequent efforts to reverse the conviction for possession were unsuccessful. See SUCR2004-10017 (D. 76, 77, 107).
The plaintiff claims that his partial victory in that case, SUCR2004-10017, was the impetus for a "witch hunt" against him, motivating law enforcement and prosecutors to entrap him further. According to the amended complaint, the state is prosecuting him again on drug charges in SUCR2006-10731 (recently re-tried, resulting in Spencer's conviction on drug distribution charges and acquittal on other charges on October 14, 2014) and SUCR2011-10040 (set for trial in January 2015).
Spencer also alleges the current prosecution against him on drug charges in another session of this Court, United States v. Spencer, Crim. No. 13-10196-RWZ, is discriminatory and retaliatory. His June 2014 trial in that case ended in a mistrial as the result of hung jury; the retrial is now scheduled for February 2, 2015. (D. 159, 196).
Spencer brings this action against state and federal prosecutors (the United States Attorney, the Suffolk County District Attorney and their respective "assistants"); his former criminal defense attorney (Edward Wayland); Annie Dookhan; the Commonwealth of Massachusetts; the Hinton Lab; the City of Boston Police Department; employees of the City of Boston Police Department (Donald Keenan; Timothy Lynch; Sergeant Dwan; and "John Doe" officers); and an informant involved in one of the state prosecutions.
Spencer has not clearly delineated his causes of action. In the introductory paragraph of his amended complaint, he characterizes this action as one for false arrest, illegal incarceration and unconstitutional conviction. In the portion of the amended complaint labeled "Claims for Relief" (D. 9 at 17-18), Spencer alleges that the defendants violated federal and state constitutional and statutory law, his civil liberties, his rights to due process and equal protection, and his right to effective assistance of counsel. In his "Prayers for Relief" (D. 9 at 19-20), the plaintiff asks the Court to declare that the prosecutions against him are unlawful and award compensatory damages.
Spencer seeks leave to proceed in forma pauperis (D. 7). He has also filed two motions for joinder of parties (D. 10, 12) in which he seeks to add additional defendants or substitute certain named individuals for the "John Doe" defendants.
Spencer has also filed two motions to file amended complaints. In the first one (D. 16), he seeks to separate his claims into five different amended complaints-one for each of the prosecutions and one against his former defense attorney. He also seeks instructions on removing a civil rights case he filed in Suffolk Superior Court to this Court. In the second motion to amend (D. 19), he proposes a second amended complaint that adds additional defendants.
Although summonses never issued, Defendants Kennan, Lynch, Dwan and "John Doe" officers, all with the Boston Police Department, filed an initial motion to dismiss (D. 17) in regard to the operative, first amended complaint (D. 9), and then later Defendants Kennan, Lynch, Dwan joined by Defendants Peter Chu, John Ryle and Brian Mahoney (named in the proposed second amended complaint) moved to dismiss (D. 23) the proposed second amended complaint (D. 19-1). Spencer seeks additional time to file oppositions to the motions to dismiss (D. 22, 25, 26). On the heels of his conviction in SUCR2006-10731, Spencer recently filed a motion for declaratory judgment (D. 28), which Defendants Dwan, Keenan, Lynch, Ryle, Chu and Mahoney oppose (D. 29).
A. Motion for Leave to Proceed In Forma Pauperis
Upon review of the plaintiff's motion for leave to proceed in forma pauperis, the Court concludes that the plaintiff is without income or assets to prepay the $350.00 filing fee and grants the motion. Pursuant to 28 U.S.C. § 1915(b)(1), the Court assesses an initial partial filing fee of $15.09. The remainder ...