United States District Court, D. Massachusetts
MEMORANDUM & ORDER
NATHANIEL M. GORTON UNITED STATES DISTRICT JUDGE
se litigant Joshua Toney, who is incarcerated at MCI
Cedar Junctions, brings this action under 42 U.S.C. §
1983 (“§ 1983”) against the “Andover
State Police, ” Lawrence District Court, and State
Trooper Michael Guerriero. Toney has also filed motions for
leave to proceed in forma pauperis and for the
appointment of pro bono counsel. For the reasons set
forth below, the Court will allow the motion for leave to
proceed in forma pauperis, dismiss two defendants,
order that a summons issue as to Trooper Guerriero, and deny
without prejudice the motion for counsel.
claims that on April 14, 2017, Trooper Guerriero arrested him
and seized the property that was on his person, including a
gold chain and $749 in cash. Toney alleges that the chain and
the cash were never returned to him, despite the order of the
state court judge presiding over the criminal proceeding for
the return of his property.
Motion for Leave to Proceed in Forma
review of the motion for leave to proceed in forma
pauperis, the Court concludes that Toney is without
income or assets to prepay the filing fee. The motion is
Review of the Complaint
Andover State Police and Lawrence District Court
a preliminary review of the complaint pursuant to 28 U.S.C.
§§ 1915(e)(2), 1915A, the Court concludes that
Toney has failed to state a claim upon which relief can be
granted against “Andover State Police” and the
Lawrence District Court these two defendants.
has filed this lawsuit against the defendants under §
1983, which provides that any “person, ” acting
under the color of state law, who “subjects, or causes
to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured.” 42 U.S.C. § 1983. However, the Supreme
Court has ruled that a state (and its departments, agents,
and individuals acting in official capacity) is not a
“person” within the meaning of § 1983.
See Will v. Michigan Dep't of State Police, 491
U.S. 58, 71 (1989).
“Andover State Police” and Lawrence District
Court include a municipal designation, these defendants are
actually agencies or departments of the Commonwealth of
Massachusetts and therefore are not “persons”
within the meaning of § 1983. It is clear from the
exhibits to the complaint that defendant “Andover State
Police” is actually a reference to the Andover Barracks
of the Massachusetts State Police, which is agency of the
state. See Compl. Ex. [ECF #1-1]. Lawrence District
Court is part of the judicial branch of the state government
and therefore is an arm the state. See M.G.L. ch.
218, § 1, et seq.
this pleading defect cannot be cured by amendment of the
complaint, the Court will dismiss these two defendants. This
dismissal is without prejudice to Toney amending his
complaint pursuant to Rule 15(a) of the Federal Rules of
Civil Procedure to include claims against any individuals
employed by these two defendants who were directly involved
in the alleged constitutional violations.