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Ellis v. Nesi

United States District Court, D. Massachusetts

June 6, 2016

SCOTT ELLIS, Plaintiff,
v.
HONORABLE ANTHONY R. NESI, ET AL., Defendants.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge

         For the reasons set forth below, plaintiffs motion for leave to proceed in forma pauperis [D. 2] is GRANTED, his motion for appointment of counsel [D. 3] is DENIED, his ex parte motion for temporary orders [D.4] is DENIED and this action is DISMISSED in its entirety. Additionally, the Court CERTIFIES that any appeal would not be taken in good faith.

         I. Introduction

         On May 10, 2016, plaintiff Scott Ellis ("Ellis"), a resident of Swansea, Massachusetts, filed a self-prepared complaint along with a motion for leave to proceed in for ma pauperis, a motion for appointment of counsel and a motion for temporary orders requesting that Court order a stay of his child support case pending in the Bristol County Probate and Family Court in Taunton, Massachusetts. The matter stems from Elhs's dissatisfaction with various rulings and orders issued by state court judges Hon. Anthony R. Nesi, of the Bristol County Probate and Family Court, Fernando R.V. Duffly, Associate Justice of the Massachusetts Supreme Judicial Court ("SJC") and Ralph D. Gants, the Chief Justice of the SJC. Ellis contends his due process rights have been violated several times because of their actions or inactions.

         Specifically, Ellis alleges that Judge Nesi is the fourth judge to handle his child support case. His predecessor, Judge Elizabeth O’Neill LaStaiti, denied a motion for modification of child support but then removed herself from the case. Ellis contends she gave no reason for her ruling and left open a motion for clarification regarding her ruling. Ellis next contends that Judge Nesi knew nothing about the case, yet sided with the attorney for the mother of the child. He ordered that the child support order already in place continue notwithstanding Ellis’s challenge to it. Further, Judge Nesi refused to recuse himself and held a hearing with respect to the support, custody and visitation issues, including the nonpayment of child support. Ellis alleges that Judge Nesi would not allow him to introduce evidence of his paystubs showing that he was working. He claims that as a result, he served thirty days in the house of correction, which, in turn, resulted in the loss of his job and his rented room, rendering him homeless. Additionally, Ellis claims that Judge Nesi continues to violate his right to a fair trial by not addressing motions properly or entirely and by not understanding what Ellis was arguing.

         On May 2, 2016, Judge Nesi ordered Ellis to be placed on home confinement with an electronic monitor. He contends that Judge Nesi is forcing him to get a job notwithstanding that he is disabled from a work-related back injury and currently undergoing medical treatment.

         Finally, Ellis alleges that he asked the SJC to take superintendence of his child support case and the matter was assigned to a single justice, Associate SJC Justice Duffly, who denied Ellis’s motion for superintendence and motion to reconsider. Ellis alleges that he believes that Justice Duffly had contact with Judge Nesi.

         As relief, Ellis requests a Temporary Restraining Order be issued to the Massachusetts Department of Revenue, Child Support Enforcement Division directing that agency to stop taking actions against him and to stop adding penalties and fees for nonpayment of child support. He also seeks an order that the current child support balance owed be vacated. Further, he asks this Court to order that new child support, custody and visitation matters be handled by the Chief Justice of the Family and Probate Courts. Finally, he seeks $8 million for the years of alienation from his child due to the defendants’ actions, although he advised the courtroom deputy clerk subsequently that he wished to increase his damages claim.

         II. Discussion

         A. The Motion for Leave to Proceed In Forma Pauperis

         Upon review of Ellis’s financial affidavit, this Court finds he lacks sufficient funds to pay the filing and administrative fees of the Court. Accordingly, his motion for leave to proceed in forma pauperis D. 2 is GRANTED.

         B. Screening of the Complaint

         When a plaintiff seeks to file a complaint 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. § 1915. This statute authorizes federal courts to dismiss a complaint sua sponte if the claims therein are frivolous, malicious, 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).

         Further, in addition to the statutory screening requirements under Section 1915, this Court has an independent obligation to inquire, sua sponte, into its subject matter jurisdiction. See McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir. 2004); Fed.R.Civ.P. 12(h)(3); se ...


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