Opinion
C.A. No. 12-10333-PBS
05-21-2012
SHAWN THIBEAULT, et al., Plaintiffs, v. ALISON BROWN, et al., Defendants.
MEMORANDUM AND ORDER
SARIS, D.J.
For the reasons stated below: (1) Plaintiff Shawn Thibeault's Application to Proceed Without Prepayment of Fees and Affidavit (Docket No. 8) is allowed; (2) Plaintiff Shawn Thibeault's motions to file CD (Docket No. 3), for Discovery (Docket No. 10) and for Leave to File (Docket No. 13) are denied as premature; (3) Plaintiff's Motion to Waive the Cost of Service (Docket No. 9) is denied without prejudice; and (4) this action shall be dismissed within 35 days of the date of this Memorandum and Order unless both plaintiffs demonstrate good cause why this action should not be dismissed or file an Amended Complaint. If Cross wishes to proceed as a party to this action, she shall be named as a plaintiff in the Amended Complaint, must sign the Amended Complaint and also file an Application to Proceed In District Court Without Prepaying Fees or Costs.
BACKGROUND
On February 22, 2012, Plaintiffs Shawn Thibeault and Samantha Cross, both residents of Dunstable, Massachusetts, filed a six-page complaint on behalf of themselves and their two minor children. The $350 filing fee was paid for filing the "emergency complaint" and plaintiffs seek, among other things, an extension of "three months to file the actual complaint." See Complaint, page 6. The plaintiffs filed a motion to enjoin the Department from Children and Families from taking any action concerning the plaintiffs' children. See Docket No. 2. Plaintiff's emergency motion was denied by endorsed order the same day; February 22, 2012. The following day, on February 23, 2012, summons were issued as to all defendants. See Docket.
Section 1983 does not provide that the parents of minor children have rights that are co-extensive with the rights of the children that may be redressed by a claim or a cause of action under the civil rights statute. Because of this, Shawn Thibeault and Samantha Cross cannot maintain any Section 1983 claims on behalf of their children. Parties to a federal lawsuit cannot be represented by anyone other than themselves or a member of the bar. See 28 U.S.C. § 1654; see also L.R. 83.5.3(c) ("A person who is not a member of the bar of this court . . . . will be allowed to appear and practice before the court only in his own behalf."). For that reason, Shawn Thibeault and Samantha Cross cannot represent their children in this action and the children will be dismissed as party plaintiffs.
The original complaint is not entirely coherent or well organized. What is clear is that plaintiffs seek "the protection of the United States District Court." The complaint consists primarily of a recounting of events surrounding an altercation among the two plaintiffs at their home as well as subsequent police and court involvement steaming from the incident. The named defendants are Thibeault's criminal defense attorney (Edgett), an assistant district attorney (Brown), three police officers (Downs, Dow and Chaprales), a court liaison (Cross) and a recording clerk (Tello).
DISCUSSION
I. Application to Proceed in District Court Without Prepaying Fees or Costs
Although Thibeault filed an Application to Proceed Without Prepayment of Fees, Cross has not. The disclosures contained in Thibeault's Application reveal that he is an arborist/landscaper and is employed as a property caretaker earning $100 per week along with full room and board for himself and his family. He discloses one time receipt of money as a gift. He owns no property and has no cash. Although Thibeault's apparent indigency did not prevent him from paying the $350 filing fee in order to file the complaint, Thibeault demonstrated sufficiently that he lacks funds to pay for service of the original complaint. Accordingly, his Application (Docket No. 8) is ALLOWED.
II. Screening of the Complaint
Because Thibeault is now proceeding in forma pauperis, his complaint is subject to screening under 28 U.S.C. § 1915(e)(2). Section 1915 authorizes federal courts to dismiss actions in which a plaintiff seeks to proceed without prepayment of fees if the action lacks an arguable basis either in law or in fact, Neitzke v. Williams, 490 U.S. 319, 325 (1989), or if the action fails to state a claim on which relief may be granted or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii).
In conducting this review, the Court liberally construes the complaint because Thibeault is proceeding pro se. See Haines v. Kerner, 404 U.S. 519, 520 (1972). The complaint is also construed in accordance with Fed. R. Civ. P. 8(e) ("Pleadings must be construed so as to do justice."). Even under a broad reading of the original complaint, however, the Court finds this action is subject to dismissal for the reasons stated below.
III. Failure to Comply With the Pleading Requirements of the Federal Rules of Civil Procedure
As filed, the complaint does not comport with the pleading requirements of Rule 8 and 10 of the Federal Rules of Civil Procedure. Rule 10 of the Federal Rules of Civil Procedure governs the form of pleadings, and requires, in part, that "[a] party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances." Fed. R. Civ. P. 10(b). Here, the complaint is not set forth in numbered paragraphs; rather, it is set forth in narrative form.
Rule 8(a) governs the substance of a pleading, and requires a plaintiff to include in the complaint, among other things, "a short and plain statement of the claim showing that pleader is entitled to relief." Fed. R. Civ. P. 8(a) (2). This statement must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests," Rivera v. Rhode Island, 402 F.3d 27, 33 (1st Cir. 2005) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)), such that the defendant is afforded 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)). See also Redondo-Borges v. U.S. Dept. of Housing and Urban Development, 421 F.3d 1, 5 (1st Cir. 2005). "In a civil rights action ... , the complaint should at least set forth minimal facts as to who did what to whom, when, where, and why." Educadores Puertorriquenos en Acción v. Hernandez, 367 F.3d 61, 68 (1st Cir. 2004). Although "the requirements of Rule 8(a)(2) are minimal ... 'minimal requirements are not tantamount to nonexistent requirements.'" Id. (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988)). Additionally, Rule 8(d)(1) requires that "[e]ach allegation must be simple, concise, and direct." Fed. R. Civ. P. 8(d)(1).
In the instant case, the allegations are vague as to the specific actions alleged to have been carried out by each defendant and the corresponding claims against each one. Plaintiffs fail to parcel out the specific alleged wrongdoings by each defendant against each plaintiff, such as the date(s) of the alleged wrongdoing and the specific circumstances. In short, by pleading the complaint in the manner they have, plaintiffs have failed to set forth the "who, what, when, where, or why" type of information necessary to set forth any cognizable claims against any defendant upon which relief may be granted. These pleading deficiencies are fatal at this juncture, and the Court cannot permit this action to proceed as pled. Accordingly, in light of the Rule 8(a) and 10 pleading deficiencies, this action is subject to dismissal.
IV. Failure to State a Claim Upon Which Relief May Be Granted
In addition to the general pleading deficiencies noted above, plaintiffs fail to assert cognizable civil rights claims against the defendants. As the Supreme Court has explained, Section 1983 provides a remedy for "deprivation of any rights, privileges, or immunities secured by the Constitution and laws" made "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory...." 42 U.S.C. § 1983. "If the plaintiff fails to allege facts sufficient to establish either the deprivation of a federal right or that the defendant or defendants acted under color of state law, then the § 1983 claim is subject to dismissal." Estades-Negroni v. CPC Hosp. San Juan Capestrano, 412 F.3d 1, 4 (1st Cir. 2005).
A. Claims Against Attorney Edgett
As an initial matter, Thibeault alleges that he fired Edgett. However, the Supreme Court has explained that "a lawyer representing a client is not, by virtue of being an officer of the court, a state actor 'under color of state law' within the meaning of § 1983." Polk County v. Dodson, 454 U.S. 312, 318, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981). And "participation by a private party in litigation, without more, does not constitute state action." Slotnick v. Garfinkle, 632 F.2d 163, 166 (1st Cir. 1980).
It is not entirely clear whether attorney Edgett was appointed by the court to represent Thibeault. Either way, courts have uniformly held that attorneys, whether appointed or retained, are not acting under color of law for purposes of § 1983 liability. See, e.g., Page v. Sharpe, 487 F.2d 567, 569-570 (1st Cir. 1973); Szijarto v. Legeman, 466 F.2d 864 (9th Cir. 1972); French v. Corrigan, 432 F.2d 1211, 1214 (7th Cir. 1970), cert. denied 401 U.S. 915 (1971); Mulligan v. Schlachter, 389 F.2d 231, 233 (6th Cir. 1968). Thus, any Section 1983 claim against defendant Edgett would be subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii).
B. Claims Against the Dunstable Police Officers
Although plaintiffs complain of the violation of Thibeault's civil rights, the specific claims are not clearly stated in the complaint. Plaintiffs alleges the Cross' father called the police, the police [Charlie Chapreles and James Dow] authored Cross' "victim statement," and subsequently arrested Shawn Thibeault" on December 12, 2011. See Compl., p. 3. Plaintiffs allege that on January 18, 2012, the police called the Department of Children and Families with an "outrageous statement claiming the witness was a pedophile and that [Thibeault's] home was therefor unsafe." Id. at p. 5. Plaintiffs appear to complain that the police misrepresented various events and conversations. As an initial matter, the failure of a police officer to conduct an adequate investigation is not sufficient to state a civil rights claim under Section 1983 "unless there was another recognized constitutional right involved." Williams v. City of Boston, 771 F. Supp. 2d 190, 200 (D. Mass. 2011) (citing Gomez v. Whitney, 757 F.2d 1005, 1006 (9th Cir.1985)). There is no constitutional right to a police investigation, adequate or otherwise.
Thibeault has a generalized right, under the Fourth Amendment, not to be subjected to unreasonable warrantless searches and seizures of his person. U.S. Const. Am. IV ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ."). To comport with the strictures of the Fourth Amendment, a warrantless arrest must be supported by probable cause. See Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 9 (1st Cir. 2004) ("When there is probable cause for an arrest, the Fourth Amendment's prohibition against unreasonable searches and seizures is not offended."); Logue v. Dore, 103 F.3d 1040, 1044 (1st Cir. 1997). The inquiry is objective, not subjective, asking whether there was a reasonable likelihood that the arrestee committed the alleged crime. See, e.g., Cox v. Hainey, 391 F.3d 25, 30 (1st Cir. 2004).
Thibeault complains that during the investigation and interviews, the police knew, or should have known, that statements against Thibeault were not accurate or reliable. However, the police had no duty to explore exculpatory evidence or investigate potential defenses before finding probable cause to arrest Thibeault. See Acosta, 386 F.3d at 11 (citing Barber v. Page, 390 U.S. 719, 725 (1968) and Baker v. McCollan, 443 U.S. 137, 145-46 (1979)). Thus, the complaint fails to adequately present factual allegations that support a search and seizure Fourth Amendment theory of recovery against the police defendants.
If Thibeault was maliciously prosecuted, he could seek recourse through a state law tort claim, but he cannot bring a § 1983 claim for a violation of his right to due process. See Meehan v. Town of Plymouth, 167 F.3d 85, 88 (1st Cir. 1999) ("A 1983 claim for malicious prosecution as a deprivation of procedural due process is barred where, as here, the state's tort law recognizes a malicious prosecution cause of action."). Thus, the § 1983 claims against the police defendants are subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
It is an "open question" in the First Circuit whether an independent Fourth Amendment malicious prosecution claim is cognizable under § 1983. See Burke v. McDonald, 572 F.3d 51, 58 n.7 (1st Cir. 2009). The ambiguity of this doctrine does not, however, help Thibeault as he has not alleged that the prosecution against him resulted in a "seizure" within the meaning of the Fourth Amendment.
C. Claims Against ADA Brown
Even if Thibeault could demonstrate that he had a constitutional due process right of which he was deprived by defendant Brown, his civil rights claims fail nevertheless because defendant Brown is entitled to absolute prosecutorial immunity for her actions in connection with Thibeault's prosecution. Imbler v. Pachtman, 424 U.S. 409, 422 (1976) (absolute judicial immunity extends to prosecuting attorneys acting within the scope of their official duties); Reid v. State of N.H., 56 F.3d 332, 337 (1st Cir. 1995).
"The law is settled that 'prosecutors are absolutely immune from liability under § 1983 for their conduct in 'initiating a prosecution and in presenting the State's case' ... insofar as that conduct is 'intimately associated with the judicial phase of the criminal process' . . . .'" Miller v. City of Boston, 297 F. Supp. 2d 361, 370 (D. Mass. 2003). "Without absolute immunity, 'harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.'" Id. quoting Imbler, 424 U.S. at 423. "The protections of absolute immunity, moreover, extend to actions that occur prior to a formal court proceeding and outside of a courtroom". Id. Thus, the Section 1983 claims against defendant Brown are subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii).
D. Claims Against Remaining Defendants
The two remaining defendants are identified as Valerie Tello, Recordings Clerk, and John Court, plaintiff Samantha Cross' father and "court liaison." See Compl., case caption.
The complaint contends, among other things, that John Cross "conspired to kidnap [Samantha Cross'] child and then again 'force' her to go to the police and write a statement that Shawn Thibeault violated the restraining order by means of seeing her." Id. at p. 4. As to Ms. Tello, it is unclear what claims the plaintiffs seek to assert against her as Recordings Clerk.
To the extent plaintiffs allege that these defendants were part of a conspiracy, the complaint contains no allegations of fact suggesting that the defendants conspired to violate plaintiff's constitutional rights. To present an adequate conspiracy claim, there must be allegations of (1) an agreement between two or more state actors, or "a state actor and a private party; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." See Ciambriello v. County of Nassau, 292 F.3d 307, 324-25 (2d Cir.2002) (citing Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.1999)). "[C]omplaints containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed." See id. at 325 (quoting Dwares v. City of N.Y., 985 F.2d 94, 100 (2d Cir.1993)).
Here, mere assertions, without more, cannot establish cognizable legal claims, nor can the simple use of the term "conspiracy" be sufficient to create a claim, without an underlying factual basis for the assertion.
IV. Order to Amend
In light of the above, the complaint is subject to dismissal. Accordingly, Shawn Thibeault and Samantha Cross are directed to file, within 35 days of the date of this Memorandum and Order, a show cause response as to why this action should not be dismissed for the reasons stated above or an Amended Complaint. Any Amended Complaint shall set forth each plaintiffs claim against each defendant in accordance with the pleading requirements of the Federal Rules of Civil Procedure. Failure to comply with this directive will result in a dismissal of this action. No summonses shall issue pending further Order of this Court.
Accordingly, it is hereby Ordered that:
1. Plaintiff Thibeault's Application to Proceed in District Court Without Prepaying Fees or Costs (Docket No. 8) is ALLOWED;
2. Plaintiff Thibeault's motions to file CD (Docket No. 3), for Discovery (Docket No. 10) and for Leave to File (Docket No. 13) are DENIED as premature;
3. Plaintiff Thibeault's Motion to Waive the Cost of Service (Docket No. 9) is DENIED without prejudice;
4. This action shall be dismissed within thirty-five (35) days of the date of this Memorandum and Order unless both plaintiffs demonstrate good cause why this action should not be dismissed or file an Amended Complaint that cures the pleading deficiencies. If Samantha Cross wishes to proceed as a party to this action, she shall be named as a plaintiff in the Amended Complaint, sign the Amended Complaint and file an Application to Proceed In District Court Without Prepaying Fees or Costs; and
5. No summons or subpoenas shall issue pending further Order of the Court.
SO ORDERED.
May 21, 2012
DATE
______________________
PATTI B. SARIS
UNITED STATES DISTRICT JUDGE