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Evariste v. Boston Police Department

United States District Court, D. Massachusetts

March 27, 2019

EMMANUEL EVARISTE, Plaintiff,
v.
BOSTON POLICE DEPARTMENT, OFFICER JONATHAN O'BRIEN, and OFFICER K. DUGAL, Defendants.

          MEMORANDUM AND ORDER

          F. DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE.

         For the reasons stated below, plaintiff's pending motions will be denied, the Boston Police Department will be dismissed from this action, and plaintiff will be ordered (1) to either pay the $400 filing or file a renewed and complete in forma pauperis motion, and (2) file an amended complaint that cures the deficiencies identified below.

         I. Background

         On December 17, 2018, pro se prisoner Emmanuel Evariste filed this action against the Boston Police Department, Officer Jonathan O'Brien and Officer K. Dugal. Evariste alleges that he was subject to illegal search and seizure, contending that he was strip-searched in a convenience store by the officers. He further contends that he was taken into custody, and at some point he suffered personal injury in an automobile accident while in the custody of the Suffolk County Sheriff's Office. Along with his complaint, Evariste filed an incomplete motion for leave to proceed in forma pauperis, a motion for discovery, and motion for speedy trial.

         On December 21, 2018, the Court ordered Evariste to file a renewed and complete motion to proceed in forma pauperis. On January 22, 2019, he filed a renewed motion to proceed in forma pauperis. Subsequent to filing this motion, Evariste filed a motion to amend the complaint, a motion to expedite final judgment, a motion for summary judgment, a motion for injunctive relief, a motion for judiciary [sic] notice, and two motions for default judgment.

         II. Discussion

         A. The Filing Fee

         Evariste's renewed motion to proceed in forma pauperis will be denied because it did not include an affidavit as required by 28 U.S.C. §1915(a)(1), nor did it include a complete prisoner account statement as required by 28 U.S.C. §1915(a)(2). Evariste will be afforded a final opportunity to resolve the fee payment issue. By April 22, 2019, he shall either: (1) pay the $400 filing and administrative fee or (2) file a renewed and complete motion to proceed in forma pauperis including the required prisoner account statements “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). The clerk will be directed to provide Evariste with a form AO240, Application to Proceed in District Court without Prepaying Fees or Costs.

         B. Initial Screening of the Complaint

         Because Evariste is a prisoner, his complaint is subject to screening pursuant to 28 U.S.C. §1915A. In connection with that preliminary screening, his pro se complaint will be construed generously. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972); Instituto de Educacion Universal Corp. v. U.S. Dept. of Education, 209 F.3d 18, 23 (1st Cir. 2000).

         1. Boston Police Department Is Not an Entity Subject to Suit.

         The Boston Police Department is not an entity separate from the City of Boston, and therefore not subject to suit under 42 U.S.C. §1983. Douglas v. Boston Police Dep't, No. C.A. 10-11049-WGY, 2010 WL 2719970, at *2 (D. Mass. July 1, 2010) (collecting cases). Accordingly, the Boston Police department is not a proper party defendant to this lawsuit, and will be dismissed. Id. (citing Curran v. City of Boston, 777 F.Supp. 116, 120 (D. Mass. 1991). Douglas v. Boston Police Dep't, No. C.A. 10-11049-WGY, 2010 WL 2719970, at *2 (D. Mass. July 1, 2010).

         2. The Complaint Fails to Comply with the Pleading Requirements of the Federal Rules of Civil Procedure.

         In its present form, the complaint fails to comply with the basic pleading requirements of the Federal Rules of Civil Procedure. Rule 8(a) requires a plaintiff to include in the complaint, among other things, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This statement must “‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atlantic Corp. v. Twombly,550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957). It must afford the defendant(s) a “[‘]meaningful opportunity to mount a defense, '” Díaz-Rivera v. Rivera-Rodríguez, 377 F.3d 119, 123 (1st Cir. 2004) (quoting Rodríguez v. Doral Mortgage Corp., 57 F.3d 1168, 1172 (1st Cir. 1995)). “In a civil rights action as ...


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