United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
RICHARD G. STEARNS, UNITED STATES DISTRICT JUDGE
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.
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 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
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.
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.
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.
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.
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.
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.
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.
TO PROCEED IN FORMA PAUPERIS
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
other civil litigants, prisoner plaintiffs 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.
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.
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).
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).
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,
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