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Ives v. Agastoni

United States District Court, D. Massachusetts

December 14, 2015

TAMMY IVES, Plaintiff,
v.
JOHN AGASTONI and DANIEL FORD, individually and in their official capacit[ies] [as] Justice[s] of the Superior Court of Berkshire County; and DEBORAH CAPELESS in her official capacity as Clerk of the Superior Court of Berkshire County, Defendants.

REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS AND FOR SUMMARY DISMISSAL PURSUANT TO 28 U.S.C. § 1915(e)(2) (Dkt. No. 2)

KATHERINE A. ROBERTSON, Magistrate Judge.

I. INTRODUCTION

On August 28, 2015, Tammy Ives ("Plaintiff"), a self-represented party, filed this civil action pursuant to 42 U.S.C. § 1983 against John Agostini[1] and Daniel Ford, both of whom are judges of the Superior Court Department of the Massachusetts Trial Court ("the Judicial Defendants") and Deborah Capeless, the elected Clerk of the Berkshire County Superior Court (collectively, "Defendants"). (The court will refer to the complaint in the instant case as the Second Complaint.) Presently before the court is Plaintiff's motion to proceed in forma pauperis (Dkt. No. 2), which has been referred to this court (Dkt. No. 6). The court recommends allowing Plaintiff to proceed without paying the filing fee. Because plaintiff will be proceeding in forma pauperis, her complaint is subject to preliminary screening under 28 U.S.C. § 1915(e)(2). For the reasons set forth below, the undersigned recommends that Plaintiff's Second Complaint be dismissed with prejudice. See 20 U.S.C. § 636(b)1)(B); Fed.R.Civ.P. 72(b)(1).

II. RELEVANT BACKGROUND

On February 12, 2015, Plaintiff filed a complaint in this court against judges Agostini and Ford, alleging, in summary, that these defendants had violated her rights under the First, Fifth, Seventh, and Fourteenth Amendments of the United States Constitution by their rulings in cases brought by Plaintiff and her husband in the Berkshire County Superior Court. The court will refer herein to the complaint in the February 12, 2015 case as the First Complaint. Plaintiff's February 12, 2015 case was docketed under the CM/ECF number 15-cv-30025. A copy of the docket in 15-cv-30025 is attached hereto as Exhibit 1 ("Exh. 1"). On April 3, 2015, the undersigned recommended summary dismissal with prejudice of Plaintiff's First Complaint pursuant to 28 U.S.C. § 1915(e)(2) (Exh. 1, Dkt. No. 6). The Clerk's Office mailed a copy of the Report and Recommendation to Plaintiff on the day it was issued at 62 Sadler Avenue in Pittsfield, the address appearing in the First Complaint (Exh. 1, Dkt. No. 7). Plaintiff did not file an objection to the Report and Recommendation, which was adopted by District Judge Mark G. Mastroianni on April 30, 2015 (Exh. 1, Dkt. No. 8). On May 1, 2015, the Clerk's Office mailed a copy of the final judgment entered on Plaintiff's First Complaint to Plaintiff at 62 Sadler Avenue, Pittsfield (Exh. 1, Dkt. No. 10).

The first four pages of Plaintiff's Second Complaint repeat virtually verbatim the contents of her First Complaint, including that Plaintiff resides at 62 Sadler Avenue in Pittsfield (Dkt. No. 1 at 1-4; Exh. 1, Dkt. No. 1 at 1-4). The First Complaint and the duplicative portion of the Second Complaint allege, in summary, that the Judicial Defendants violated Plaintiff's constitutional rights under the First, Fifth, Seventh and Fourteenth Amendments to the United States Constitution by denying every motion she filed without a reason; denying her requests for trials; and refusing to allow Plaintiff and her husband to speak in court to their satisfaction (Exh. 1, Dkt. No. 1 at 1-4; Dkt. No. 1 at 1-4). Both complaints allege that the Judicial Defendants are biased against self-represented parties, and that the judges and the Clerk's Office have conspired to lose Plaintiff's filings and delay rulings on her motions and claims ( id .). In addition to the portion of the Second Complaint that repeats the allegations made in the First Complaint, the Second Complaint alleges that, more recently, the Judicial Defendants, in concert with Ms. Capeless, improperly denied Plaintiff's request for a jury trial and allowed a motion for summary judgment in a case in which Plaintiff was a defendant (Dkt. No 1 at 5). The Second Complaint further alleges that the Judicial Defendants have a conflict of interest in cases to which Plaintiff is a party and that Ms. Capeless has "aided in the antics of the judges" by inequitably applying the procedural rules of the Superior Court and rubber stamping the names of the Judicial Defendants on the paper work ( id .).

Neither of Plaintiff's complaints enumerates any causes of action. In her prayer for relief in the First Complaint, Plaintiff requested injunctive relief commanding the Judicial Defendants to review all of her cases; declaratory and other relief as deemed appropriate by this court; and an award for the costs of litigation and travel (Exh. 1, Dkt. No. 1 at 5). In the Second Complaint, she requests injunctive relief commanding the Judicial Defendants "to review all cases, and excuse themselves from [her cases] due to conflict of interest;" declaratory and other relief as deemed appropriate by this court; an award for the costs of litigation and travel; and that Ms. Capeless "be put on leave until further investigation" (Dkt. No. 1 at 6).

III. DISCUSSION

a. The motion for leave to proceed in forma pauperis

Upon review of Plaintiff's financial disclosures, the court finds that she is without sufficient funds to pay the filing fee for this action. Accordingly, the court recommends granting Plaintiff's Motion to Proceed in Forma Pauperis .

b. The complaint is subject to screening

Because Plaintiff will be proceeding in forma pauperis, her complaint is subject to preliminary screening under 28 U.S.C. § 1915(e)(2). This statute directs federal district courts to dismiss actions in which a plaintiff seeks to proceed without prepayment of fees if the action is malicious or frivolous; fails to state a claim upon which relief can be granted; or seeks monetary or other relief against a defendant who is immune from such relief. See id.; see also Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). In addition to the screening function under § 1915, this court also has an independent obligation to inquire sua sponte into the question of its subject matter jurisdiction. 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."); McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir. 2004).

For purposes of preliminary screening, the court liberally construes Plaintiff's complaint because she is self-represented. See Rodi v. Southern New England Sch. of Law, 389 F.3d 5, 13 (1st Cir. 2004) (citing Boivin v. Black, 225 F.3d 36, 43 (1st Cir. 2000)). Even allowing for a liberal construction of the Second Complaint, the ...


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