United States District Court, D. Massachusetts
SEAN E. JELEN
WILLIAM A. VISOVICH, JAIME BOWER, SUSAN JELEN, and QUEENS COUNTY CLERK
MEMORANDUM AND ORDER OF DISMISSAL
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE
1, 2019 For the reasons stated below, the court denies
plaintiff's motions for temporary restraining order and
to proceed in forma pauperis and the case is
dismissed on the grounds of Younger abstention.
Sean E. Jelen, an inmate now in custody at FMC Devens,
initiated this action on January 9, 2019, by filing a
complaint against a New York judge (William Viscovich), a New
York court-appointed attorney (Jaime Bower), Jelen's
spouse who resides in Pennsylvania (Susan Jelen), and an
unnamed clerk of Queens County, New York. Jelen contends that
this Massachusetts federal court has both federal question
jurisdiction as well as diversity jurisdiction. See
Docket No. 1. With his complaint, Jelen filed motions to
proceed in forma pauperis and for preliminary
injunctive relief. See Docket Nos. 2, 3.
January 15, 2019, this court denied Jelen's motion for
preliminary injunction and noted that his complaint is likely
subject to dismissal for many of the same reasons outlined in
the dismissal of Jelen, et al. v. Viscovich, et al.,
No. 18-2814 (E.D.N.Y Jun. 1, 2018), appeal filed,
No. 18-1809 (2d Cir. Jun. 18, 2018). See Docket No.
court also denied Jelen's motion for leave to proceed
in forma pauperis because it was not signed under
the pains and penalties of perjury and was not accompanied by
a certified copy of his prison account statement as required
by 28 U.S.C. §§ 1915(a)(1), (2). Id. The
Order granted Jelen 28 days to file a renewed motion
accompanied by his prison account statement and explicitly
advised plaintiff that a failure “to comply with these
directives may result in the dismissal of this action.”
before the court are Jelen's motion for temporary
restraining order, renewed motion to proceed in forma
pauperis and supplemental complaint. See Docket
Nos. 7 - 9.
initial matter, the court notes that Jelen failed to submit a
copy of his prison account statement, despite the statutory
requirement that a prisoner plaintiff's request to
proceed without prepayment of the filing fee must be
accompanied by “a certified copy of the trust fund
account statement (or institutional equivalent) for the
prisoner for the 6-month period immediately preceding the
filing of the complaint . . . obtained from the appropriate
official of each prison at which the prisoner is or was
confined.” 28 U.S.C. § 1915(a)(2). Because of
this, his motion for leave to proceed in forma
pauperis must be denied. Although it is a
long-established principle that this court has the authority
to sua sponte dismiss an action due to a
plaintiff's failure to follow an order of the court,
see Fed. R. Civ. P. 41(b), this action will not be
dismissed based on Jelen's failure either to provide a
copy of his prison account statement as ordered by the court
or an explanation as to why it has not been provided.
the motion for temporary restraining order, Jelen again
complains of the violation of his constitutional rights in a
civil proceeding in New York State and now seeks to enjoin
the sale of properties located in New York and Pennsylvania.
See Docket No. 8. Although Jelen argues that the
defendant New York judge “threatened to execute the
sale of plaintiff's homes, and other assets, unless
plaintiff performs actions which he has no means of doing so,
due to his incarceration, ” id. at ¶ 6A,
Jelen has not shown a reasonable likelihood of success on the
this court otherwise has jurisdiction, the court will abstain
from exercising jurisdiction under Younger v.
Harris, 401 U.S. 37, 46 (1971). A federal court must
abstain from reaching the merits of a case over which it has
jurisdiction “if (1) there is an ongoing state judicial
proceeding involving the federal plaintiff that (2)
implicates important state interests and (3) provides an
adequate opportunity for the federal plaintiff to assert his
claims.” Colonial Life & Accidental Ins. Co. v.
Medley, 572 F.3d 22, 26 (1st Cir. 2009). When the
three-part test is satisfied, the Younger doctrine
“contemplates the outright dismissal of the federal
suit, and the presentation of all claims, both state and
federal, to the state courts.” Gibson v.
Berryhill, 411 U.S. 564, 577 (1973). The
“exceptions to Younger's policy of
abstention have been very narrowly construed by the [Supreme]
Court.” Cobb v. Supreme Judicial Court of
Massachusetts, 334 F.Supp.2d 50, 53 (D. Mass. 2004)
(citing United Books, Inc. v. Conte, 739 F.2d 30, 34
(1st Cir. 1984).
Jelen's argument to the contrary, this court finds that
Jelen has an adequate opportunity to raise his federal claims
in the state proceeding. As all of the requirements for
Younger abstention are met without any applicable
exceptions, abstention is mandatory. See Mass. Delivery
Ass'n v. Coakley, 671 F.3d 33, 39 (1st Cir. 2012).
foregoing reasons, ...