United States District Court, D. Massachusetts
ORDER ON MOTION TO PROCEED IN FORMA PAUPERIS AND
REPORT AND RECOMMENDATION FOR DISMISSAL
KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE.
reasons stated below, the Court will allow the motions to
proceed in forma pauperis and recommend that the
complaint be dismissed pursuant to 28 U.S.C.
§1915(e)(2)(B) for failing to state a claim on which
relief may be granted.
se plaintiffs Tammy Ives (“Ives”) and
William D. Bean (“Bean”) filed a civil rights
complaint against Linda Tyer, the mayor of Pittsfield, and
Mark Blaisdell, a nuisance control officer for the City of
Pittsfield. Complaint (“Compl.”), ECF No. 1.
Plaintiffs allege that the Court has jurisdiction under the
Sunshine Act, 5 U.S.C. § 552b; the Civil Rights Act, 42
U.S.C. § 1983; the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101, et seq.; and 18
U.S.C. § 2261A (the federal criminal statute that
prohibits stalking). Id. Each plaintiff filed an
Application to Proceed in District Court without Prepaying
Fees or Costs. ECF Nos. 2, 3.
who appear to be a father and daughter residing together at
62 Sadler Avenue in Pittsfield, Massachusetts, state that
they have the “right to be happy and that [they enjoy]
collecting items.” Compl., ECF No. 1 at p. 7. The
complaint appears to indicate that either one or both of the
plaintiffs “have psychological disabilities.”
Id. They allege that the mayor of Pittsfield
“was notified multiple times of the wrong doings of the
health department and Mark Blaisdell.” Id. at
p. 8. Plaintiffs allege that defendant Blaisdell “has
harassed us since 2014 [and has] bullied and manipulated
family members, admitted to watching us and peeping in our
fence.” Id. Plaintiffs complain that Blaisdell
“randomly uses profanity and makes our living at the
house miserable” and has “invaded our privacy by
peeping and discussing private matters in a public
atmosphere.” Id. Plaintiffs allege that
Blaisdell has “gone beyond the reach of his
title.” Id. at p. 7.
seek reimbursement “for [$]3, 760.00 in hidden fees
[for water and sewer service that were paid from a mortgage
as well as] 3, 500 for the removal of a garage, 300.00 for a
dumpster, 200.00 at a time for trumped up fines.”
Id. at p. 8. Plaintiffs ask to be “reimbursed
for [their] pain and suffering” and for “128, 000
for [their] property value that [Blaisdell] is trying to
diminish.” Id. Plaintiffs seek protection from
Blaisdell's alleged harassment and ask “for his
immediate dismissal.” Id. Plaintiffs ask for
Mayor “Linda Tyer to be held responsible.”
has filed several lawsuits in state court for matters that
stem from zoning and code enforcement actions, including a
2014 lawsuit against defendant Blaisdell. See Ives, et
al. v. Blaisdell, et al., 1476cv00291 (filed Nov 3, 2014
Berkshire Superior Court), appeal filed, No
2015-P-0174 (Mass Appeals Court June 10, 2015) (dismissed for
lack of prosecution); Ives, et al. v. Keefner,
1476cv00216 (Berkshire Superior Court Nov 6, 2014) (Judgment
of dismissal), appeal filed, No 2014-P-1846 (Mass
Appeals Court Dec. 1, 2014) (pending); Ives, et al. v.
Ouelette, No. 1476cv00250 (filed Sept. 17, 2014
Berkshire Superior Court), appeal filed, No
2015-P-0096 (Mass Appeals Court Jan. 20, 2015) (pending);
Ives v. Pittsfield City Council, No. 1476cv00155
(Berkshire Superior Court July 28, 2014 (granting
defendants' motion to dismiss); Ives v. Terrance, et
al., No. 1476cv00014 (filed Jan. 22, 2015).
Plaintiffs' Motions to Proceed In Forma
to 28 U.S.C. § 1915, a district court may authorize the
commencement of a civil action in forma pauperis if
it is satisfied that the would-be plaintiff cannot pay the
filing fees necessary to pursue the action. See 28
U.S.C. § 1915(a)(1). Upon review of plaintiffs'
financial disclosures, the Court concludes that they have
shown that they are each without sufficient funds to pay the
filing fee for this action. Accordingly, the motions to
proceed in forma pauperis are ALLOWED.
Preliminary Screening of the Complaint
plaintiffs are proceeding informapauperis, their
complaint is subject to preliminary screening under 28 U.S.C.
§ 1915(e)(2). This statute directs federal district
courts to dismiss actions in which a plaintiff seeks to
proceed without prepayment of fees if the action is malicious
or frivolous; fails to state a claim upon which relief can be
granted; or seeks monetary or other relief against a
defendant who is immune from such relief. See id.;
see also Denton v. Hernandez, 504 U.S. 25, 32-33
(1992); Gonzalez-Gonzalez v. United States, 257 F.3d
31, 37 (1st Cir. 2001).
determining whether a complaint states a claim, the Court
accepts as true the well-pleaded allegations in the complaint
and draws reasonable inferences in the plaintiffs' favor.
Martino v. Forward Air, Inc., 609 F.3d 1, 2 (1st
Cir. 2010). The allegations in the complaint must “set
forth minimal facts as to who did what to whom, when, where,
and why.'” Ruiz-Rosa v. Rullán, 485
F.3d 150, 154 (1st Cir 2007) (quoting Educadores
Puertorriquñeos en Acción v.
Hernández, 367 F.3d 61, 66 (1st Cir. 2004)). 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 plausibility
standard does not require a probability but is more than a
mere possibility. Ashcroft v. Iqbal, 556 U.S. 662,
purposes of preliminary screening, the court liberally
construes plaintiffs' complaint because they are
self-represented. See Rodi v. Southern New England Sch.
of Law, 389 F.3d 5, 13 (1st Cir. 2004) (citing
Boivin v. Black, 225 F.3d 36, 43 (1st Cir. 2000)).
Pro se plaintiffs, however, must still comply with procedural
and substantive law and “dismissal remains appropriate
... when the complaint fails to even suggest an actionable
claim.” Overton v. Torruella, 183 F.Supp.2d
295, 303 (D. Mass. 2001). Even allowing for a liberal
construction of the complaint, the court recommends, for the
reasons set forth below, that it be dismissed pursuant to 28
U.S.C. § 1915 (e)(2) for failure to state a claim on
which relief may be granted.