United States District Court, D. Massachusetts
SAUEL S. ALMONTE, Plaintiff,
COMMONWEALTH OF MASSACHUSETTS, et al., Defendants.
MEMORANDUM AND ORDER
DENISE J. CASPER, District Judge.
Plaintiff Sauel S. Almonte ("Almonte") brings this action against federal and state agencies, employees and private individuals in which he alleges that the government has turned a blind eye to the criminal activities of members of organized crime gangs in exchange for information about the criminal activities of their competitors. For the reasons stated below, the Court grants Almonte leave to file a second amended complaint.
According to the amended complaint, on April 7, 2011, one or more persons attempted to murder Almonte in Mashpee, Massachusetts. The plaintiff claims that he was "set up" for the murder attempt by Tinea Gilbert and that members of organized crime conspired to carry out the attack, and because of the status of some of the conspirators as confidential informants, law enforcement turned a blind eye to their activities. The plaintiff also maintains that local, state, and federal law enforcement are aware of the "contract out for [his] life." Amend. Compl. (D. 9) at ¶ 30. He believes that he has been "robbed [of] everything" and that he has been "denied employment do [sic] to the monopoly the Varano Family and their associates have throughout the working environments and throughout New England." Id. at ¶ 31. Almonte further alleges that he has "exhausted all possible procedures with in [sic] the Commonwealth of Massachusetts but have been made impossible to do the roadblocks those cells that work for and play favoritism with the Varano family in order to keep me silent." Id.
Almonte states that he is bringing claims for "defamation, pre-meditated attempt of murder, larceny, forgery, negligence, and conspiracy." Id. at ¶ 1. He also asserts that the defendants are liable under the Racketeer Influenced and Corruption Organizations Act, 18 U.S.C. §§ 1961-68; "Color of Law (Failure to Keep from Harm)"; 42 U.S.C. § 14141; 18 U.S.C. § 242; Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971); "conspiracy violations"; violations of state law; and, emotional distress.
Because the plaintiff is proceeding in forma pauperis, the amended complaint is subject to screening under 28 U.S.C. § 1915(e)(2). This statute authorizes federal courts to dismiss actions in which a plaintiff seeks to proceed without prepayment of fees if the action is malicious, frivolous, 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). In conducting this review, the Court liberally construes the complaint because the plaintiff is proceeding pro se. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
For the reasons stated below, the amended complaint is subject to dismissal.
A. Sovereign Immunity of the United States
The United States (including its various branches, departments, and agencies) enjoys immunity from suit except in those instances in which it has expressly consented to be sued. See FDIC v. Meyer, 510 U.S. 471, 475 (1994). By passing the Federal Tort Claims Act ("FTCA") Congress waived the sovereign immunity of the United States for claims that fall within the purview of the statute. See 28 U.S.C. §§ 1346(b), 2671-2680; Barrett ex rel. Estate of Barrett v. United States, 462 F.3d 28, 36 (1st Cir. 2006). However, a plaintiff may not institute a claim under the FTCA in a federal district court until (1) the plaintiff has filed an administrative claim with the "appropriate Federal agency"; and (2) the agency finally denies the administrative claim or six months pass without a final denial of the administrative claim-whichever comes first. 28 U.S.C. § 2675(a). This administrative remedy exhaustion requirement is jurisdictional. See Barrett, 462 F.3d at 38; see also McNeil v. United States, 508 U.S. 106, 113 (1993) ("The FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies").
Here, Almonte names the United States and the FBI as defendants, both of whom enjoy sovereign immunity in the absence of a waiver. The plaintiff purports to bring claims under the FTCA. However, he does not give any indication that he has filed the requisite administrative claim. Accordingly, the Court is without jurisdiction to consider any claims brought under the FTCA. Further none of the other bases of liabilities set forth by the plaintiff, see Amend. Compl. (D. 9) at ¶ 2, waive the sovereign immunity of the United States.
B. Eleventh Amendment Immunity of the Commonwealth of Massachusetts Almonte names the Attorney General's Office, Barnstable Probate and Family Court
Falmouth District Court, Roxbury District Court, Boston Municipal Court, Supreme Judicial Court and the Massachusetts State Police. All of these entities are agencies or departments of the Commonwealth of Massachusetts. See, e.g., Whalen v. Massachusetts Trial Ct., 397 F.3d 19, 28-30 (1st Cir. 2005) (state trial court entitled to Eleventh Amendment immunity); Johnson v. Board of Bar Overseers of Mass., 324 F.Supp. 276, 286 (D. Mass. 2004) (Board of Bar Overseers entitled to Eleventh Amendment immunity). The Eleventh Amendment of the United States Constitution 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). Here, the Court cannot discern any claim for relief against these defendants for which the Commonwealth of Massachusetts has waived its immunity or Congress has overridden it. Further a state is not a "person" under 42 U.S.C. § 1983, a statute which provides a right of action for the violation of federal rights by a "person" acting under the color of state law. See Will v. Michigan ...