United States District Court, D. Massachusetts
ORDER FOR REASSIGNMENT AND REPORT AND
L. CABELL, U.S.M.J.
reasons stated below, this action shall be reassigned to a
District Judge. Upon reassignment, this Court recommends to
that District Judge that the action be dismissed pursuant to
28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a
claim upon which relief may be granted.
Nickerson (“Nickerson”) initiated this action by
filing a complaint alleging that various New Hampshire state
agencies and employees violated his constitutional rights.
See Docket No. 1. By Memorandum and Order dated May
9, 2018 (the “Memorandum and Order”), plaintiff
was permitted to proceed in forma pauperis and was
advised that his complaint failed to state a claim upon which
relief may be granted. See Docket No. 5.
Memorandum and Order explained that the Eleventh Amendment
bars suits in federal courts against states, its departments,
its agencies, and its officers acting in an official
capacity, unless the state has consented to suit or Congress
has overridden the state's immunity. The Memorandum and
Order also noted that the complaint failed to identify acts
of misconduct by each of the parties and failed to set forth
claims in a fashion which would permit any of the defendants
to file a meaningful response.
before the Court is Nickerson's amended complaint.
See Docket No. 6 (Am. Compl.). The amended complaint
is handwritten and again names as defendants five employees
of Child Support Services of New Hampshire (“the
CSS” defendants: Chelsea Malizia, Sheri E. Colligan,
Jeffrey Meyers, Mary S. Wetherill, and Catherine Davidow); a
state court judge and clerk (“the judicial”
defendants: Hon. John Pendleton and Diane P. Caron); and the
acting director of the Registry of Motor Vehicles of New
Hampshire (Elizabeth Bielecki). The amended complaint appears
to name three additional defendants, including Intuit, Inc.,
the U.S Department of the Treasury, and the Internal Revenue
Service. See Am. Compl., p. 6. In addition to
asserting constitutional claims, Nickerson alleges violations
of federal criminal statutes as well as state law claims for
tort, trespass, and fraud. See Am. Compl.
can be gleaned from the amended complaint, Nickerson seeks to
enjoin “all monetary collections and return [the $3,
150 that was] seized [on] 4-17-18 [from wife's tax
return].” Id. p. 1. Nickerson complains that
the funds were seized “after litigation was initiated
and [parties notified that the] unvalidated (sic) debt was
being contested.” Id. Nickerson alleges that
on or about March 2008, the CSS defendants failed to provide
an attorney to protect Nickerson's parental rights,
improperly used DNA, arbitrarily confiscated funds,
discriminated against Nickerson based on gender, and
proceeded despite a conflict of interest. Id. at p.
2. Nickerson alleges collusion between the defendants and
complains that his motorcycle and operator's license were
revoked without court order and that his religious beliefs
have not been respected. Id. at p. 6. Nickerson
contends that actions were taken without proper notification
and without court order. Id. at p. 7.
purposes of preliminary review, the Court liberally construes
Plaintiff's amended complaint because he is
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)).
Even allowing for a liberal construction of the amended
complaint, the court recommends, for the reasons set forth
below, that it be dismissed pursuant to 28 U.S.C. §
1915(e)(2) for failing to state a claim upon which relief may
be granted and seeking monetary relief against defendants who
are immune from such relief.
amended complaint suffers from many of the same deficiencies
as the original complaint, including insufficient factual
allegations. Plaintiff's claims are not presented in a
fashion which would permit any of the defendants to file a
meaningful response and do not conform to the pleading
requirements of the Federal Rules of Civil Procedure.
complaint references several federal statutes, however such
statutes do not provide a basis for relief. The federal
criminal statutes referred to in the complaint, 18 U.S.C.
§§ 241, 242, do not provide a private right of
action and cannot be used in a civil action. Cok v.
Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (per
curiam)(stating that only the United States as prosecutor can
bring a complaint under 18 U.S.C.§§ 241-242);
see also Rockefeller v. U.S.Ct. of App. Office, for Tenth
Circuit Judges, 248 F.Supp.2d 17, 23 (D.D.C. 2003)
(granting motion to dismiss claim brought under 18 U.S.C.
the judicial defendants, absolute judicial immunity bars any
claims against the state court judge and clerk for acts taken
in their judicial capacities. See Pierson v. Ray,
386 U.S. 547, 553-54 (1967) (“immunity of judges for
acts within the judicial role is [ ] well
established”); see also Slotnick v. Staviskey,
560 F.2d 31, 32 (1st Cir. 1977) (state court judge enjoys
absolute immunity from suit under § 1983, “as does
his clerk”); see also Goldstein v. Galvin, 719
F.3d 16, 25 (1st Cir. 2013) (judicial immunity extends to
core judicial functions that are performed by judges and
clerks within the scope of their jurisdiction).
the Court is unable to adjudicate several of plaintiff's
claims because they are barred by the Eleventh Amendment of
the United States Constitution. The Eleventh Amendment
generally is recognized as a bar to suits in federal courts
against a state, its departments, its agencies, and its
officers acting in an official capacity, unless the state has
consented to suit or Congress has overridden the state's
immunity. See Regents of the Univ. of Cal. v. Doe,
519 U.S. 425, 429 (1997); Kentucky v. Graham, 473
U.S. 159, 167 n. 14 (1985); Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984);
Alabama v. Pugh, 438 U.S. 781, 782 (1978).
Nickerson's attempt to enjoin the IRS and the Treasury
Department from levying his or his wife's funds may be
aimed at restraining the collection of taxes. The court lacks
jurisdiction to enjoin the IRS or the Treasury Department
from such collection activity by the Anti-Injunction Act, 26
U.S.C. § 7421(a). Moreover, to challenge reckless or