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Ives v. Tyer

United States District Court, D. Massachusetts

November 6, 2017

TAMMY IVES, et al., Plaintiffs,
v.
LINDA TYER, et al., Defendants.

          ORDER ON MOTION TO PROCEED IN FORMA PAUPERIS AND REPORT AND RECOMMENDATION FOR DISMISSAL

          KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE.

         For the 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.

         I. Background

         Pro 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.

         Plaintiffs, 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.

         They 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.” Id.

         Ives 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).

         II. Plaintiffs' Motions to Proceed In Forma Pauperis

         Pursuant 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.

         III. Preliminary Screening of the Complaint

         Because 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).

         In 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, 678 (2009).

         For 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.

         IV. ...


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