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Tavares v. Barnstable County Commissioners

United States District Court, D. Massachusetts

March 5, 2018

DANIEL D. TAVARES, Plaintiff,
v.
BARNSTABLE COUNTY COMMISSIONERS, et al., Defendants.

          MEMORANDUM AND ORDER

          DENISE J. CASPER UNITED STATES DISTRICT JUDGE

         Pro se litigant Daniel D. Tavares (“Tavares”) has filed a civil complaint, D. 1, in which he alleges that he was wrongfully convicted in the state district court of larceny by false pretenses. For the reasons set forth below, the court will grant the plaintiff's motion for leave to proceed in forma pauperis and direct the plaintiff to file an amended complaint. The court also denies without prejudice the plaintiff's motions for counsel and for certain discovery.

         I. Background

         Tavares was convicted in the Barnstable Division of the state's District Court Department of possessing counterfeit currency, uttering a counterfeit note, and larceny by false pretenses of property not exceeding $250 in value. See Commonwealth v. Tavares, 87 Mass.App.Ct. 471, 471 (2015). The Appeals Court of Massachusetts upheld the conviction, see id., and the Massachusetts Supreme Judicial Court denied further appellate review, see 472 Mass. 1106 (2015). As Tavares points out, the Commonwealth's position, as set forth in the decision of the Appeals Court, was that Tavares used a counterfeit $100 bill to obtain gasoline at a service station. See Compl. ¶ 7 at 2-3.

         Tavares brings the present action against the Barnstable County Commissioners, the Commonwealth of Massachusetts, Barnstable County Sheriff James Cummings, and the Barnstable County Correctional Facility. Tavares claims that his conviction for larceny by false pretenses was wrongful because (1) he neither obtained title to the gasoline nor procured a contract for the same; and (2) using counterfeit money to make a purchase does not meet the definition of larceny by false pretenses. He represents that, while serving his sentence for the conviction, he wrote numerous letters to all of the defendants, informing them that he was illegally incarcerated and that they were all liable therefor. Tavares further claims that “[o]n January 6, 2017, . . . the defendants, in all there [sic] infinite wisdom, decided that since they knew the 1 year served by plaintiff [on the larceny by false pretenses] was illegal. They would give the 1 year served as JAIL CREDIT' to plaintiff” in a criminal prosecution against him in Barnstable Superior Court. Id. ¶ 8 at 5.

         Tavares also filed motions for leave to proceed in forma pauperis, D. 5, for appointment of counsel, D. 2, leave to amend his complaint, D. 3, and for the production of discovery materials, D. 4, 8.

         II. Discussion

         A. Motion for Leave to Proceed in Forma Pauperis

         Upon review of Tavares's motion for leave to proceed in forma pauperis, the court concludes that he has adequately demonstrated his inability to pay the $400 filing fee. Accordingly, the motion will be GRANTED.

         B. Screening of the Complaint

         Because Tavares is proceeding in forma pauperis, the complaint is subject to a preliminary screening under 28 U.S.C. § 1915(e)(2). This statute authorizes federal courts to dismiss actions in which a plaintiff seeks to proceed without prepayment of fees if the action is malicious, frivolous, fails to state a claim upon 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). In conducting this review, the court liberally construes the plaintiff's complaint because he is proceeding pro se. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

         Here, Tavares has failed to state a claim upon which relief may be granted. The thrust of the plaintiff's complaint is that his conviction for larceny by false pretenses was unlawful. However, to recover for an allegedly unlawful conviction, the underlying conviction must have been overturned or otherwise invalidated.

         In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court considered whether a state prisoner who was serving a sentence for voluntary manslaughter could bring a claim under 42 U.S.C. § 1983 (“§ 1983”)[1] in which the plaintiff alleged that state prosecutors and the police had violated his rights under the United States Constitution by engaging in an unlawful investigation leading to the plaintiff's arrest, knowingly destroying exculpatory evidence, and causing an unlawful voice identification procedure to be used at trial. See id. at 479. Drawing upon the common law tort principle that an action for malicious prosecution cannot be maintained unless the prior criminal proceeding was terminated in favor of the accused, the Court held that “in order to recover damages for allegedly unconstitutional conviction or imprisonment . . . a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.” Id. at 484, 486-87.[2]

         Here, the “favorable termination” rule of Heck appears to bar this action. Success on the merits of Tavares's claim would imply the invalidity of his conviction for larceny by false pretenses, and he has not pled facts from which the court can reasonably infer that his conviction for that crime has been invalidated. The plaintiff does claim that defendants “recognize[ed]” his conviction for larceny by false pretenses was illegal and consequently credited his time served on that conviction to another criminal case. However, this assertion is somewhat vague and may only reflect the plaintiff's speculation concerning the reason for the crediting of jail time. To overcome the “favorable termination” rule of Heck, Tavares must specifically identify how his conviction for larceny by false pretenses was “reversed on ...


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