United States District Court, D. Massachusetts
ALI L. CROSS, Plaintiff,
DOC SHERIFF OFFICE OF SUFFOLK COUNTY HOUSE OF CORRECTION et al. Defendants.
SOROKIN UNITED STATES DISTRICT JUDGE
Plaintiff Ali L. Cross (“Cross”) failed to file a
renewed motion to proceed in forma pauperis as ordered by the
Court on July 26, 2019 and as extended by the Court on August
21, 2019. See ECF Nos. 4 and 7, respectively.
Accordingly, Cross shall by November 15,
2019 either: (1) file a renewed, complete and
signed motion to proceed in forma pauperis on a Form
AO 240 provided by the Court; or (2) pay the $400 filing and
administrative fee. The Clerk is directed to provide another
form AO 240 for Cross's use in this regard. The Court
does not need a new prison account statement. While
it appears Cross is indigent, the Court cannot assess
Cross's in forma pauperis eligibility without
the required affidavit under 28 U.S.C. §1915(a).
It is FURTHER ORDERED that Cross shall by
November 15, 2019, file an amended
complaint complying with the basic pleading requirements of
the Federal Rules of Civil Procedure, including without
limitation the joinder rules under Fed.R.Civ.P. 18 and 20, as
set forth herein. Cross impermissibly seeks to bring two
unrelated actions in one complaint: one action for acts and
omissions relating to his pending criminal action, Compl.
¶¶1-7, and the other for his treatment at the
Suffolk County Jail, Compl. ¶¶ 8-18. While Rule
18(a) of the Federal Rules of Civil Procedure permits Cross
“to bring multiple claims against a defendant in a
single action . . . it does not permit the joinder of
unrelated claims against different defendants.”
Chase v. Chafee, No. CA 11-586ML, 2011 WL 6826504,
at *2 (D.R.I. Dec. 9, 2011), report and recommendation
adopted, No. CA 11-586 ML, 2011 WL 6826629 (D.R.I. Dec.
28, 2011); see Spencer v. Bender, No. CA
08-11528-RGS; 2010 WL 1740957 at *2 (D. Mass. April 28, 2010)
(citing George v. Smith, 507 F.3d 605, 607 (7th
Cir.2007)). Instead, Rule 20 of the Federal Rules of Civil
Procedure provides separate defendants “may be joined
in one action as defendants if. . . any right to relief is
asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or
occurrences; and . . . any question of law or fact common to
all defendants will arise in the action.” Fed.R.Civ.P.
20(a)(2). In addition to procedural pleading rules, if Cross
were permitted to bring two unrelated actions, he could
effectively avoid paying two separate filing fees, and
possibly avoid the “three strikes” rule under 28
U.S.C. §1915(g). Chase, 2011 WL 6826504, at *3.
of dismissing the action, Cross shall be permitted to amend
his complaint to bring a single action in this case. He may
choose which action to bring, and the Court takes no position
as to the merits of the claims, but to the extent Cross seeks
to proceed in this case with an action in federal court
relating to his pending criminal case in the Boston Municipal
Court, this Court may ABSTAIN from exercising
jurisdiction over any such claims under Younger v.
Harris, 401 U.S. 37 (1971). Under that doctrine, a court
should abstain from exercising jurisdiction “when the
requested relief would interfere (1) with an ongoing state
judicial proceeding; (2) that implicates an important state
interest; and (3) that provides an adequate opportunity for
the federal plaintiff to advance his federal constitutional
challenge.” Massachusetts Delivery Ass'n v.
Coakley, 671 F.3d 33, 40 (1st Cir. 2012). All three
Younger elements are met here. Furthermore, even if
the Court were not to abstain, it appears Cross seeks relief
under 42 U.S.C. §1983 from some parties who may be
immune from such relief; here, a Boston Municipal Court Judge
and an unnamed district attorney in that action. See
Zenon v. Guzman, 924 F.3d 611, 616 (1st Cir.
2019)(judicial immunity); Filler v. Kellett, 859
F.3d 148, 152-53 (1st Cir. 2017)(prosecutorial immunity). In
the current version of the complaint, Cross identifies no
judicial or prosecutorial actions or omissions outside of
routine court hearings and motion practice relating to his
the claims against Suffolk County Jail and its personnel,
Cross alleges that he was, among other things, denied a
double mattress for back problems, denied snacks for low
glucose, made requests for documents in a different civil
case in this court, provided inadequate medications, denied a
request for copies of “process, ” and was denied
law library access. Many of the allegations are conclusory
and vague, and the claims and relief sought as to each
defendant are not entirely clear. Cross refers in his
complaint to various exhibits and “affidavits, ”
some of which are signed, but not under the penalties of
perjury. The main body of the complaint is not signed. This
type of pleading is insufficient.
amending his complaint in this action, and preparing a
complaint in any civil action, Cross is reminded that the
Federal Rules of Civil Procedure must be followed. Under the
Rules, an amended complaint must contain “a
short and plain statement of the claim
showing that the pleader is entitled to relief, ”
Fed.R.Civ.P. 8(a)(2) (emphasis supplied), and
“‘give [each] 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) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957). That is, a “complaint should at least
set forth minimal facts as to who did what to whom, when,
where, and why-although why, when why means the actor's
state of mind, can be averred generally.”
Educadores Puertorriqueños en Acción v.
Hernandez, 367 F.3d 61, 68 (1st Cir. 2004). The claims
must be “set forth in numbered paragraphs, each limited
as far as practicable to a single set of
circumstances.” Fed.R.Civ.P. 10(b). Because it promotes
clarity, “each claim founded on a separate transaction
or occurrence. . . must be stated in a separate count.”
Id. While detailed factual allegations are not
required, Cross must set forth as to each defendant
what he claims they did (or failed to do),
where it occurred, when it occurred, and
the relief he seeks as to each defendant separately.
But another way, the amended complaint must clearly identify
the claims and relief Cross seeks as to each defendant, and
provide sufficient factual bases for each of the elements of
the claims that he asserts. The Court also notes the
“[t]he title of the complaint must name all the
parties.” Fed.R.Civ.P. 10(a). While the amended
complaint may include exhibits that are relevant to the
claims, see Fed.R.Civ.P. 10(c), use of exhibits is not
required, and does not excuse Cross of his responsibility to
clearly set forth the relevant allegations in the body of the
amended complaint. That is, he may not incorporate by
reference affidavits or other documents in place of well
pleaded allegations. Because an amended complaint completely
replaces the original complaint, and is a stand-alone
document, Cross should repeat in his amended complaint any
allegations in the original complaint that he wishes to be
part of the operative complaint. See Connectu LLC v.
Zuckerberg, 522 F.3d 82, 91 (1st Cir. 2008) (“An
amended complaint, once filed, normally supersedes the
antecedent complaint.. . .Thereafter, the earlier complaint
is a dead letter and no longer performs any function in the
case.) (citations and quotations omitted). He may
not, for example, incorporate by reference allegations from
the prior complaint into the amended complaint. Cross must
sign the amended complaint. Fed R. Civ. P. 11(a). The amended
complaint will be further screened on its own merits pursuant
to 28 U.S.C. §1915A, and if proceeding in forma
pauperis, under 28 U.S.C. §1915(e).
Cross's September 29, 2019 “Affidavit”, ECF
No. 14, is construed as a motion to amend the complaint. The
motion is DENIED as MOOT inasmuch as Cross
is being ordered to amend his complaint and he is, in any
event, permitted to amend his ...