United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
B. SARIS CHIEF JUDGE, UNITED STATES DISTRICT COURT
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.
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(2016)(unpublished decision).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
Vick's Motion to Proceed In Forma
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. 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.
Screening of the Complaint
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.
Federal Claims under 42 U.S.C. § 1983
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)).
Claims against the Commonwealth of
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.
Claims against Former Assistant District ...