United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Nathaniel M. Gorton, United States District Judge
reasons set forth below, the Court allows plaintiff's
motion to amend and for leave to proceed in forma
pauperis, and denies plaintiff's motions for speedy
trial, to expedite final judgment, for injunctive relief, for
default judgment, to amend relief, and for service by
Marshall. If plaintiff wishes to pursue this action, the
Court will permit him to file a second amended complaint that
cures the pleading deficiencies noted below.
Evariste (“Evariste”), now in custody at the
Bristol County Jail and House of Correction, filed a pro
se complaint accompanied by an Application to Proceed in
District Court without Prepaying Fees or Costs. See
Docket Nos. 1, 2.
Evariste's Application to Proceed in District Court
without Prepaying Fees or Costs was filed without a copy of
his prison account statement, the Application was denied
without prejudice. See Docket No. 4. In response,
Evariste filed an unsigned motion for leave to proceed in
forma pauperis accompanied by a copy of his inmate
account activity report. See Docket No. 10. Also
pending are motions for speedy trial, to expedite final
judgment, for injunctive relief, for default judgment, to
amend, to proceed in forma pauperis, to amend
relief, and for service by Marshall. See Docket Nos.
5-11, 13-15, 17, 19, 21, 23, 24, 29, 31-32, 34.
original complaint names as defendants the Massachusetts
Probation Service and Probation Officer Gordon Dimbrosio.
See Docket No. 1. Evariste's most recent motion
to amend is accompanied by a proposed amended complaint that
names as defendants the City of Boston and Probation Officer
Gordon Dimbrosio. See Docket No. 36. As best can be
gleaned from the proposed amended complaint, Evariste alleges
that at his June 25, 2018 arraignment on a drug charge in
state court, the defendant probation officer produced a
violation sheet stating that Evariste had failed to report to
probation on May 17, 2018, when in fact he had. Id.
Evariste contends that he was deprived of his freedom when he
was subsequently held on a probation detainer. Id.
at p. 1. Evariste seeks monetary damages in the amount of
“$10 million” for “great harm, mental
anguish, pain and suffering.” Id. at p. 4.
Motion for Leave to Proceed In Forma
review of Evariste's motion (Docket No. 25) for leave to
proceed in forma pauperis and prison account
statement, the Court concludes that he is without income or
assets to pay the $400.00 filing fee. Because Evariste is not
a prisoner as defined by 28 U.S.C. §
1915(h), he is not obligated to make payments
towards the filing fee pursuant to 28 U.S.C. § 1915(b).
Evariste's motion is therefore granted.
plaintiff seeks to file a complaint without prepayment of the
filing fee, a summons does not issue until the Court reviews
the complaint and determines that it satisfies the
substantive requirements of 28 U.S.C. § 1915. Section
1915 authorizes federal courts to dismiss complaints sua
sponte if the claims therein lack an arguable basis in
law or in fact, fail to state a claim on which relief may be
granted, or seek monetary relief against a defendant who is
immune from such relief. See 28 U.S.C. §
examining the sufficiency of the pleadings, the Court
considers whether the plaintiff has pled “enough facts
to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
conducting this review, the Court liberally construes the
pleadings because the plaintiff is proceeding pro
se. Haines v. Kerner, 404 U.S. 519, 520 (1972);
Rodi v. New Eng. Sch. of Law, 389 F.3d 5, 13 (1st
Cir. 2004). Even under a broad reading, however, this action
is subject to dismissal for the reasons set forth below and
the plaintiff will be afforded an opportunity to file a
second amended complaint.
matter, Evariste seeks to hold the City of Boston and a
probation officer liable for alleged negligence and