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Vick v. Commonwealth

United States District Court, D. Massachusetts

September 15, 2017




         For the reasons stated below, plaintiff's motion to proceed in forma pauperis is allowed, an initial filing fee is assessed, and plaintiff is ordered to file an amended complaint within 28 days.

         I. Background

         Plaintiff Charlie Dontay Vick was convicted in Suffolk Superior Court of carrying a firearm, carrying a loaded firearm, and assault and battery. Com. v. Vick. 89 Mass.App.Ct. 1103 (2016)(unpublished decision). On appeal, the Massachusetts Court of Appeals held that prosecutor's closing argument and other argument was unfairly prejudicial and ordered a new trial. Id. Vick was retried and acquitted of the same charges on November 1, 2016. Vick is currently incarcerated, apparently on unrelated charges. Vick brings this civil action for monetary damages against the Commonwealth of Massachusetts, the City of Boston, the City of Revere, the Revere Police Department, Detective Lynn Romboli and former Assistant District Attorney Nicole Cordeiro for alleged violation of his civil rights, malicious prosecution, intentional infliction of emotional distress, and defamation. (ECF No. 1). Along with his complaint, Vick filed a motion to proceed in forma pauperis. (ECF No. 2)

         II. Discussion

         A. Vick's Motion to Proceed In Forma Pauperis

         Vick's motion for leave to proceed in forma pauperis (ECF No. 2) is hereby ALLOWED. Pursuant to 28 U.S.C. § 1915(b)(1), the Court assesses an initial partial filing fee of $16.00.[1] The remainder of the fee, $334.00, shall be collected in accordance with 28 U.S.C. § 1915(b)(2). The Clerk shall send a copy of this Order to the Treasurer's Office at the Middlesex County House of Correction, along with the standard Notice to Prison form.

         B. Screening of the Complaint

         Because Vick 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.

         1. Federal Claims under 42 U.S.C. § 1983

         Vick claims that his civil rights have been violated under the United States Constitution. “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.'” Freeman v. Town of Hudson, 714 F.3d 29, 37 (1st Cir. 2013)(quoting 42 U.S.C. § 1983). To state a claim, Vick 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 denial of rights secured by the Constitution or by federal law.” Id. (citing Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997)).

         a. Claims against the Commonwealth of Massachusetts

         The Commonwealth of Massachusetts is not a “person” within the meaning of 42 U.S.C. § 1983 with respect to actions for monetary damages. Rosario-Urdaz v. Rivera-Hernandez, 350 F.3d 219, 222 (1st Cir.2003). Accordingly, Section 1983 damages claims against the Commonwealth of Massachusetts are subject to dismissal.

         b. Claims against Former Assistant District ...

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