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Decarvalho v. Telford, C. A.

United States District Court, D. Massachusetts

August 22, 2017

JANITO DECARVALHO, Plaintiff
v.
ERIK TELFORD, et al., Defendants.

          MEMORANDUM AND ORDER

          MARIANNE B. BOWLER UNITED STATES MAGISTRATE JUDGE

         Plaintiff Janito Decarvalho, (“Decarvalho”), an inmate confined to MCI Concord, filed a pro se complaint accompanied by motions to proceed in forma pauperis, for appointment of counsel and for service. This action was randomly assigned to the undersigned Magistrate Judge pursuant to the District Court's Program for Random Assignment of Civil Cases to Magistrate Judges.

         I. Background

         Plaintiff brings this action seeking damages for false imprisonment, loss of property and malicious prosecution in violation of the Fourth, Fifth and Fourteenth Amendments to the United States Constitution. Named as defendants are a Plymouth County prosecutor, the Massachusetts State Police and ten state troopers; the Brockton Police Department and two police detectives; the FBI and an FBI special agent; the City of Brockton, Plymouth County and an unnamed defendant.

         Plaintiff's claims stem from his May 14, 2012 arrest in his Brockton apartment. Plaintiff alleges that the defendants entered his apartment with a “no knock” warrant. He alleges that several days after his arrest, he was informed by relatives that when they arrived at his apartment after his arrest, they observed that the main entrance to the premises was unlocked and open and that plaintiff's personal property had been stolen from the apartment. Plaintiff alleges that he was taken to the Plymouth House of Correction the day after his arrest and was subsequently released on bail. On June 17, 2015, plaintiff was acquitted of all charges stemming from his May 14, 2012 arrest.

         II. Application to Proceed Without Prepaying Fees or Costs

         A party bringing a civil action must either (1) pay the $350.00 filing fee and the $50.00 administrative fee, see 28 U.S.C. § 1914(a); or (2) seek leave to proceed without prepayment of the filing fee, see 28 U.S.C. § 1915 (proceedings in forma pauperis). Unlike other civil litigants, prisoner plaintiffs are not entitled to a complete waiver of the filing fee, notwithstanding the grant of in forma pauperis status.

         Upon review of Decarvalho's financial disclosures in his in forma pauperis application and his prison account statement, this Court will ALLOW his Motion for Leave to Proceed in forma pauperis (Docket No. 2). Nevertheless, because Decarvalho is a prisoner as defined by 28 U.S.C. § 1915(h), he is obligated to make payments toward the filing fee pursuant to 28 U.S.C. § 1915(b). In light of this, plaintiff will be assessed an initial partial filing fee of $12.46 pursuant to 28 U.S.C. § 1915(b)(1)(A), with the remainder of the fee, $337.54, to be assessed and collected in accordance with 28 U.S.C. § 1915(b)(2).

         III. Screening of the Complaint

         Because Decarvalho is a prisoner proceeding without the prepayment of the filing fee, the complaint is subject to review to determine if it satisfies the requirements 28 U.S.C. § 1915 (proceedings in forma pauperis) and 28 U.S.C. § 1915A (screening of suits against governmental officers and entities). Section 1915 authorizes the federal courts to dismiss an action in which a plaintiff seeks to proceed without prepayment of the filing fee if the action lacks an arguable basis either in law or in fact, Neitzke v. Williams, 490 U.S. 319, 325 (1989), or if the action fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915 (e)(2); Neitzke v. Williams, 490 U.S. at 325; Denton v. Hernandez, 504 U.S. 25, 32-33 (1992); Gonzalez-Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir. 2001). Section 1915A also authorizes the Court to review prisoner complaints in civil actions in which a prisoner seeks redress from a governmental entity, or officers or employees of a governmental entity, and to dismiss the action regardless of whether or not the plaintiff has paid the filing fee, if the complaint lacks an arguable basis in law or fact, fails to state a claim, or seeks relief from a defendant immune from such relief. 28 U.S.C. § 1915A.

         Under the Federal Rules of Civil Procedure, a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Federal Rule of Civil Procedure 8(a). Rule 8 is a fact pleading standard. In determining whether a complaint states a claim, the court accepts as true the well-pleaded allegations in the complaint and takes reasonable inferences in the plaintiff's favor. Martino v. Forward Air, Inc., 609 F.3d 1, 2 (1st Cir. 2010).

         To avoid dismissal, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The“[f]actual allegations must be enough to raise a right to relief above the speculative level... on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (internal citations omitted). The plausibility standard does not require a probability but is more than a mere possibility. Ashcroft v. Iqbal, 556 U.S. 662 (2009).

         In conducting the preliminary screening, the Court construes plaintiff's pro se complaint generously. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Rodi v. New Eng. Sch. of Law, 389 F.3d 5, 13 (1st Cir. 2004).

         IV. Analysis

         Although Decarvalho has not directly invoked 42 U.S.C. § 1983, some of his claims could be construed as falling under the purview of that section. Title 42 U.S.C. § 1983 grants individuals the right to sue those acting “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia ... [for] the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. Thus, to state a claim for relief under Section 1983, a plaintiff must show that “the challenged conduct [is] attributable to a person acting under color of state law” and that “the conduct must have worked a ...


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