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Diaz v. Perez

United States District Court, D. Massachusetts

November 21, 2016

LUIS DIAZ
v.
MILAGROS PEREZ, et al.

          MEMORANDUM AND ORDER

          RICHARD G. STEARNS, UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         On September 12, 2016, Plaintiff Luis Diaz (“Diaz”), while a pre-trial detainee at MCI - Cedar Junction, filed an eighteen-page, handwritten complaint accompanied by an Application to Proceed Without Prepayment of Fees. See Docket Nos. 1-2. Diaz subsequently filed a motion for counsel and appointment of a guardian. See Docket No. 5. By state court order dated September 26, 2016, Diaz was committed for six months to Bridgewater State Hospital for treatment to restore him to competence so that he can stand trial. Id.

         BACKGROUND

         Diaz' Complaint asserts federal claims pursuant to 5 U.S.C. § 702 (right of review), 18 U.S.C. § 1349 (attempt and conspiracy), 18 U.S.C. § 1951 (interference with commerce by threats or violence), 18 U.S.C. § 1956 (laundering of monetary instruments), 28 U.S.C. § 1605(a)(5)(B) (general exceptions to the jurisdictional immunity of a foreign state), 42 U.S.C. §§ 1981 (equal rights under the law), 1983 (civil action for deprivation of rights), 1985 (conspiracy to interfere with civil rights) and state claims under the Massachusetts Tort Claims Act (M.G.L. c. 258) and Article 12 of the Massachusetts Declaration of Rights. The case caption of the Complaint lists named defendants as well as John Doe defendants[1] and, on page 3, Diaz identifies the “Principal Defendants” as Milagros Perez of Boston, Auto Exchange of Framingham, Cruz Management of Roxbury and the Suffolk County District Attorney's Office.

         Plaintiff's Complaint consists primarily of a recounting of events leading up to plaintiff's arrest, detention and prosecution for charges that Diaz describes as fabricated. Diaz describes Defendant Milagros Perez (“MP”) as a narcotics gang leader, prostitute and FBI informant. Complaint (“Compl.”), ¶¶ 3, 5, 9-11, 16, 18, 22. Diaz describes himself as a victim of MP explaining that she conspired with gang members to frame Diaz. Compl., ¶¶ 8, 9, 11. Diaz alleges that he was robbed at gunpoint by MP's son and that Diaz was thrown out of the apartment they shared despite the fact that Diaz was paying MP's rent. Compl., ¶ 16. He contends that MP conspired with her relatives to tell Diaz that she was pregnant in order to steal more than $20, 000 in cash from him. Compl., ¶ 16. When Diaz sought the return of the money, he alleges that MP threatened him with his prison record and reminded him that she and her son were agents of the FBI and the Lawrence police. Compl., ¶ 16.

         Diaz alleges that he “was assaulted by the gang” while the police were escorting him in hand-cuffs to a police car. Compl., ¶ 9. He complains of a cover-up because the police failed to report the assault and the gang members were not charged. Compl., ¶ 9.

         Diaz alleges that perjured statements by several defendants, including MP, led to his indictment on June 23, 2013. Compl., ¶¶ 12, 24. Diaz contends that MP “illegally bought her apartment from Cruz Management” in early 2014 and subsequently pressured Cruz Management to refuse to provide Diaz with exculpatory video of the crime scene. Compl., ¶ 7. Diaz alleges that the “D.A. Office, along [with] the District Court of Roxbury and South Bay prison, maliciously and obstructively ignored [Diaz'] timely motions to preserve the video tapes in the building of Cruz Management on 16 Akron St. in Roxbury for the purpose to illegally protect the criminal activities of Milagros Perez and Company in order to facilitate the perjuries used to frame [Diaz] with fabricated criminal charges so that the D.A. Office could [suborn] Milagros with [Diaz'] money and properties.” Compl., ¶ 8.

         Diaz complains that his first court-appointed lawyer threatened him because of Diaz' demand for preservation of the video tapes from Cruz Management. Compl., ¶ 9. Diaz complains that MP has intimidated witnesses and sabotaged the criminal investigation. Compl., ¶¶ 3, 7, 10, 19. He complains that her power of intimidation extends to both prisoners and prison guards at the facilities to which Diaz is confined. Compl., ¶ 10. He alleges that he was “retaliated against and punished in South Bay prison for protesting about the motions and letters which [Diaz] filed in order to preserve the crucial evidence of the video tapes which [would demonstrate that] the police officers and the D.A. office [are] withholding crucial information which can demonstrate how Milagros and company managed to frame Diaz, and how the police maliciously failed to report how [Diaz] was assaulted by the gang while [he] was handcuffed behind [his] back and escorted to the police car.” Compl., ¶ 9.

         Diaz complains that MP drugged him several times, enticed him to use cocaine, and, along with her son, extorted $50, 000 from him. Compl., ¶¶ 22, 27. In addition to conspiring to have false charges brought against him, Diaz alleges that MP tried to recruit Diaz to commit armed robbery. Compl., ¶¶ 7-8, 13, 23.

         Among other things, Diaz contends that he was persuaded by several defendants to pay $6, 000 to Bosley Hair Restoration (“BHR”). Compl., ¶ 28. Diaz suspects that MP kept the BHR wig in order to provide DNA evidence to the district attorney. Compl., ¶ 28. Diaz complains that MP stole documents from his friends and step-sister's house to give to the district attorney. Compl., ¶ 14. Diaz complains that Exchange Auto Sales in Framingham sold him a defective SUV and subsequently conspired to commit fraud with MP by illegally selling the SUV. Compl., ¶¶ 1, 28.

         Diaz seeks relief as follows: (1) a criminal investigation based upon the allegations in the complaint and criminal charges against any individuals directly or indirectly involved; (2) monetary damages from Milagros Perez and others for extortion; (3) monetary damages from Auto Exchange; (3) monetary damages from Bosley Hair Restoration; (4) monetary damages from any and all government agents that handled Milagros Perez and who facilitated fraud, intimidation and extortion; and (5) an order for government officials and agents to disclose any information concerning the activities of Milagros Perez.

         MOTION TO PROCEED IN FORMA PAUPERIS

         Based on the information contained in Diaz' Application to Proceed Without Prepayment of Fees and the prison account statement submitted therewith, the court grants the motion to proceed in forma pauperis. The grant of this motion only relieves Diaz of the obligation to prepay the filing fee.

         Unlike other civil litigants, prisoner plaintiffs[2] are not entitled to a complete waiver of the $350.00 filing fee, notwithstanding the grant of in forma pauperis status. Based on the information contained in the prison account statement, Diaz is obligated to make monthly payments of 20 percent of the preceding month's income credited to the his account until the $350.00 filing fee has been paid in full. The court will direct the appropriate official to withdraw payments on a monthly basis. See 28 U.S.C. § 1915(b)(2).

         STANDARD OF REVIEW

         A federal court must engage in a preliminary screening of any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). Similarly, when a plaintiff is permitted to proceed 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.

         The court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2); 1915A(b)(1), (2). An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim on which relief may be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Conversely, a complaint is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         In addition to the statutory screening requirements under § 1915A, this Court has an independent obligation to inquire, sua sponte, into its own subject matter jurisdiction. McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir. 2004). “Whenever it appears ... that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” Fed.R.Civ.P. 12(h)(3). As an additional matter, when subject matter jurisdiction is lacking, there is no arguable or rational basis in law or fact for a claim, and thus the action may be dismissed sua sponte under § 1915. Mack v. Massachusetts, 204 F.Supp.2d 163, 166 (D. Mass. 2002).

         In conducting this review, the court reads Diaz' complaint with “an extra degree of solicitude, ” Rodi v. Ventetuolo, 941 F.2d 22, 23 (1st Cir.1991), due to his pro se status, see id.; see also Strahan v. Coxe, 127 F.3d 155, 158 n. l (1st Cir. 1997) (noting obligation to construe pro se pleadings liberally) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)).

         Even under a liberal construction, however, there are a number of legal impediments to this action that warrant dismissal. Most of the claims must be dismissed and what little part of the Complaint ...


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