United States District Court, D. Massachusetts
OPINION AND ORDER
plaintiff, Friedrich Lu, appearing pro se, has filed
this action, purportedly seeking relief under the Racketeer
Influenced and Corrupt Organizations Act (“RICO”)
and 42 U.S.C. § 1983 against the defendants. The
plaintiff asserts a number of state law claims as well. The
defendants appear to all be related in some way to the Pine
Street Inn, a non-profit that, among other things, runs a
homeless shelter in Boston. Lyndia Downie, Rosemary Cashman,
and Shaughnessy Charbonneau work for the organization. Rachel
Muñoz, a lawyer at Morgan, Brown & Joy LLP, is one
of the organization’s attorneys.
defendants have moved to dismiss the First Amended Complaint
for failure to state a claim upon which relief may be
granted. Federal question jurisdiction is explicitly invoked
in the First Amended Complaint. The parties do not appear to
be of diverse citizenship. Because, as will be discussed
below, the plaintiff has not pled any meritorious federal
claims, his state law claims are dismissed without prejudice.
See 28 U.S.C. § 1367(c)(3).
factual basis of the plaintiff’s grievance(s) is
somewhat obscure. The plaintiff alleges that, on different
occasions, he lost three items while at the Pine Street Inn:
a duffel bag, a pair of shoes, and a tablet. As to the duffel
bag, the plaintiff states that someone, unknown, stole the
bag one night. The charge brought against the Pine Street Inn
is that an employee at the shelter played too quickly
security tape footage of the incident. None of the
individuals involved in this incident are defendants in this
case. This incident occurred at least four years before the
filing of the Complaint.
the shoes, the plaintiff alleges that, as he was leaving a
dormitory at the Pine Street Inn, Charbonneau saw the
plaintiff holding a pair of men’s leather shoes.
Charbonneau “insisted the shoes were stolen
goods” and demanded that they be turned over to her.
(First Am. Compl. ¶ 4 (dkt. no. 12).) Charbonneau, along
with another employee and an officer of the Boston Police
Department-neither of whom are defendants
here-“snatched the shoes” from the plaintiff.
(Id.) It is unclear when this incident took place.
loss of the tablet again involves an attempt to watch a video
recording. None of the defendants are implicated in the loss
itself. However, the plaintiff states that he brought a
lawsuit in state court to compel the Pine Street Inn to allow
him to watch any relevant video tapes. The claim alleged here
is that Muñoz filed a motion to dismiss supported by
an affidavit signed by Cashman that falsely asserted that the
Pine Street Inn had never been served with process. This loss
took place sometime in September 2012, and the court case
progressed throughout the early part of 2013.
plaintiff bringing a claim under RICO “must allege at
pattern of racketeering activity involving at least two
predicate acts.” Ahmed v. Rosenblatt, 118 F.3d
886, 888 (1st Cir. 1997). A predicate act of racketeering
activity can be any of a number of indictable criminal acts.
See id. at 888-89; 18 U.S.C. § 1961(1).
Specifically here, the plaintiff alleges wire fraud, mail
fraud, and extortion. A plaintiff must show that “the
racketeering predicates are related, and that they
amount to or pose a threat of continued criminal
activity.” Giuliano v. Fulton, 399 F.3d 381,
386-87 (1st Cir. 2005) (quoting H.J. Inc. v. Nw. Bell
Tel. Co., 492 U.S. 229, 239 (1989) (emphasis in
original)). That is, the plaintiff must show both relatedness
and continuity. Id.
the plaintiff has not pled any predicate acts at all. The
plaintiff has not shown how the first and third incidents-the
ones involving video playback-fit under any of the categories
of racketeering activity. They certainly are not extortion.
See 18 U.S.C. § 1951. Nor does the Amended
Complaint plead fraud-either wire or mail-with any
particularity. See Fed. R. Civ. Pro. 9(b); see
also Ahmed, 118 F.3d at 889. Nor does the shoe-snatching
incident fall under those headers. A RICO claim requires at
least two predicates, and the plaintiff is unable to get
there. See Ahmed, 118 F.3d at 888.
there is nothing suggesting that the disparate incidents are
linked to one another. They appear to be widely spaced events
involving different individuals and dissimilar circumstances.
For the two videotape playback incidents, there is nothing to
suggest that employees at the Pine Street Inn were involved
in the loss of property at all.
the plaintiff shown continuity. “[W]here only a few
predicate acts are alleged . . . continuity can never be
established.” Giuliano, 399 F.3d at 387. Here,
the plaintiff has only alleged three fairly isolated
incidents. That is not enough to state a RICO claim. Cf.
Efron v. Embassy Suites (Puerto Rico), Inc., 223 F.3d
12, 17, 21 (1st Cir. 2000) (dismissing a RICO claim
concerning seventeen acts of wire and mail fraud over
twenty-one months); Fleet Credit Corp. v. Sion, 893
F.2d 441, 447 (1st Cir. 1990) (finding ninety-five fraudulent
mailings over four and one-half years stated a RICO claim);
id. (citing Parcoil Corp. v. Nowsco Well
Serv., 887 F.2d 502 (4th Cir.1989) (“seventeen
falsified reports sent over a period of four months do not
plaintiff also brings a claim under 42 U.S.C. § 1983
against Charbonneau and the Pine Street Inn. There is nothing
suggesting that either are state actors, and so the claim
must be dismissed. See Estades-Negroni v. CPC Hosp. San
Juan Capestrano, 412 F.3d 1, 4-5 (1st Cir. 2005).
defendants’ Motion to Dismiss (dkt. no. 14) is GRANTED.
Counts One, Two, Three, Four, and Five-the four RICO counts
and the § 1983 count-are dismissed with prejudice. The
state law claims-Counts Six and Seven-are dismissed without
prejudice. The case is DISMISSED.