Opinion
CIVIL ACTION NO. 02-30108-MAP
August 7, 2003 September 7, 2002
REPORT AND RECOMMENDATION REGARDING DEFENDANTS' MOTIONS TO DISMISS and PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT (Document Nos. 14. 31 and 36)
John Stote ("Plaintiff"), a prisoner proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 ("section 1983") against state officials, members of the Springfield police force, and a private citizen ("Defendants"), for allegedly conspiring to violate his civil rights during the investigation and prosecution of his criminal case. In separate motions, the "State Defendants" — District Attorney William Bennett ("Bennett"), Assistant District Attorney Dianne Dillon ("Dillon"), and State Police Laboratory Supervisor Gwen Pino ("Pino") — and the "City Defendants" — Springfield Police Captain Elmer McMahon ("McMahon"), Lieutenant Thomas Kelly ("Kelly"), and Officers Dennis O'Connor ("O'Connor") and Eugene Dean ("Dean") — seek to dismiss Plaintiffs complaint pursuant to Fed.R.Civ.P. 12(b)(6). For his part, Plaintiff has moved for a default judgment against Springfield resident Alfred Varelas ("Varelas").
The two motions to dismiss, along with Plaintiff's motion for default judgment, have been referred to this court for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B). For the reasons indicated below, the court will recommend that the motions to dismiss be allowed and that the motion for default judgment be denied.
I. BACKGROUND
Plaintiff was convicted of first degree murder in Massachusetts Superior Court on June 23, 1997, and sentenced to life in prison without parole. See Commonwealth v. Stote, 739 N.E.2d 261 (Mass. 2000). On December 8, 2000, the state's Supreme Judicial Court affirmed the conviction and the lower court's denial of a new trial. See id. at 261. Subsequently, on December 5, 2001, Plaintiff, represented by counsel, filed in this district a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, Stote v. Allen, Civil Action No. 01-12139, which remains pending. Thereafter, on July 1, 2002, Plaintiff filed this pro se action pursuant to section 1983.
Plaintiff also purports to be proceeding in this action under the Racketeer Influenced and Corrupt Organization Act ("RICO"), but his complaint does not actually allege a RICO claim. See Feinstein v. Resolution Trust Corp., 942 F.2d 34, 41 (1st Cir. 1991) (to pursue a RICO claim, the plaintiff must allege conduct of an enterprise through a pattern of racketeering activity) (citing S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985)). Accordingly, the court considers the instant action as arising only under section 1983.
The complaint alleges that Defendants violated Plaintiff's civil rights in a variety of ways. For example, Plaintiff asserts that Dillon, Pino, and McMahon conspired to hide an exculpatory forensic report, and that Bennett, Dillon, Kelly, O'Connor and Dean colluded to conceal the victim's alleged criminal activity and relationship to organized crime. (Complaint ¶¶ 17-21.) Plaintiff further avers that Bennett, Dillon, Kelly, O'Connor, Dean and Varelas conspired to "[lie] to a jury for the purpose of slandering the Plaintiff . . . [and] to obstruct justice." ( Id. ¶ 23.) Finally, Plaintiff alleges that Bennett and Dillon obstructed justice and violated the Massachusetts Rules of Court and the Canon Rules of Ethics by not reporting certain conflicts of interest to the trial judge. ( Id. ¶ 41.) As relief, Plaintiff seeks a declaratory judgment that Defendants violated his civil rights, an injunction ordering Defendants "removed from their positions of Legal Authority," and damages totaling over $22 million. (Complaint at 14.)
II. MOTIONS TO DISMISS
In ruling on the State and City Defendants' Rule 12(b)(6) motions to dismiss, the court must accept Plaintiffs factual allegations as true and construe all reasonable inferences in his favor. See Gorki v. New Hampshire Dep't of Corrections, 290 F.3d 466, 473 (1st Cir. 2002); Langadinos v. American Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000). In accordance with well-settled praxis, however, dismissal is appropriate if Plaintiff has failed to state a claim which would entitle him to relief. See Judge v. City of Lowell, 160 F.3d 67, 72 (1st Cir. 1998); Rumford Pharmacy, Inc. v. City of East Providence, 970 F.2d 996, 998 (1st Cir. 1992).
To be sure, the court must take special care when viewing a pro se litigant's submissions which, "however inartfully pleaded," are held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Estelle v. Gamble, 429 U.S. 97, 106 (1976). Still, even a civil rights plaintiff proceeding pro se is required to "allege facts, and not mere conclusions, in support of his claim." Gallego v. Wilson, 882 F. Supp. 1169, 1172 (D. Mass. 1995). See Romero-Barcelo v. Hernandez-Agosto, 75 F.3d 23, 28 n. 2 (1st Cir. 1996); Fishery. Flynn, 598 F.2d 663, 665 (1st Cir. 1979).
In light of these standards, the court turns to the pending motions to dismiss. While the State and City Defendants offer several reasons for dismissal, the court need deal only with the State Defendants' primary argument, that the Supreme Court's ruling in Heck v. Humphrey, 512 U.S. 477 (1994), bars Plaintiff's suit. In the court's view, Heck mandates dismissal of both sets of defendants from this action.
In Heck, the Supreme Court held that a state prisoner may not maintain a section 1983 action if "a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence" unless the plaintiff can demonstrate that "the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus." Id. at 487. Thus, there are two questions before the court: (1) whether Plaintiff's section 1983 suit "necessarily impl[ies] the invalidity of his conviction"; and (2) if so, whether Plaintiff's conviction has been somehow "reversed . . ., expunged . . ., declared invalid . . ., or called into question by . . . [the] issuance of a writ of habeas corpus."
With regard to the first question, the court believes that this action clearly alleges the invalidity of Plaintiff's conviction. The complaint not only attacks the investigation and prosecution of Plaintiff's criminal case, including the withholding of exculpatory evidence and providing of false testimony, it claims Plaintiff has been unconstitutionally imprisoned, in part, because of his trial counsel's ineffectiveness. See Edwards v. Balinsok, 520 U.S. 641, 646 (1997) (allegation that witnesses who possessed exculpatory evidence were prevented from testifying implies conviction was invalid); Figueroa v. Rivera, 147 F.3d 77, 80 (1st Cir. 1998) ( Heck applies to unconstitutional conviction and imprisonment claims based on police investigator's lies and witness coercion); Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995) (dismissing, under Heck, claim that defendants conspired to convict plaintiff by fabricating testimony and other evidence); Boyd v. Biggers, 31 F.3d 279, 283 (5th Cir. 1994) (claims of ineffective assistance of counsel and withholding exculpatory evidence challenge conviction's validity).
As to the second question, since the validity of Plaintiffs conviction is being challenged, this section 1983 action may survive only if Plaintiff can show that his conviction has been "reversed . . ., expunged . . ., declared invalid . . ., or called into question by . . . [the] issuance of a writ of habeas corpus." Plaintiff makes no such showing. Granted, the pending habeas petition in which Plaintiff is represented by counsel presumably seeks to overturn his conviction. However, there is no evidence that that proceeding has yet resulted in Plaintiff's conviction being reversed or even called into question by the issuance of a writ. Rather, it appears from the court's own review of the habeas docket that a motion to dismiss has been filed and that a status report in that matter is due on September 3, 2003.
Before moving on, the court makes three additional points. First, although it is the State Defendants who have raised Heck, their argument applies with equal force to the City Defendants. See Heck, 512 U.S. at 490 (dismissing section 1983 claim against county prosecutors and a state investigator); Figueroa, 147 F.3d at 82 (applying Heck to section 1983 action against local prosecutor and police officers); Boyd, 31 F.3d at 284 (dismissing, under Heck, section 1983 claim targeting trial judge, prosecutor, sheriff and investigator). Second, because, at bottom, the validity of Plaintiff's conviction is being challenged, the type of relief Plaintiff seeks — money damages, an injunction, and declaratory relief — is immaterial; Heck applies to all three. See Edwards, 520 U.S. at 648 (barring, under Heck, claims for declaratory relief and money damages); Kutzner v. Montgomery County, 303 F.3d 339, 340 (5th Cir. 2002) ( Heck bars claim for damages and injunctive relief). Third, insofar as Plaintiffs habeas petition remains pending, the court believes that dismissal of the instant section 1983 action should be done without prejudice. See Heck, 512 U.S. at 487-90 (noting that section 1983 claim might "arise" if writ of habeas corpus is issued). In short, the court will recommend that the State and City Defendants' motion to dismiss be allowed, in toto, but without prejudice to Plaintiff's right to bring a properly-filed section 1983 action in the event his habeas petition succeeds.
III. PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT
For his part, Plaintiff seeks a default judgment against Varelas for failing to respond to the complaint. There are several reasons why this court will recommend denial of Plaintiff's motion. For one thing, the court questions whether Varelas, in fact, has been served. On the return of service form (Document No. 27), under "remarks," there is the following notation: "1-16-03 Endeavor Made. Nobody Home." More importantly, Varelas is a "private actor" not subject to liability under section 1983. See Brown v. Newberger, 291 F.3d 89, 93 (1st Cir. 2002).
IV. CONCLUSION
For all the reasons stated, the court recommends that Defendants' motions to dismiss be ALLOWED and that Plaintiffs motion for default judgment be DENIED.
The parties are advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these findings and recommendations must file a written objection with the Clerk of this Court within ten (10) days of the party's receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Secretary of Health Human Services, 848 F.2d 271, 275 (1st Cir. 1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir. 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir. 1980). See also Thomas v. Arn, 474 U.S. 140, 154-55 (1985). A party may respond to another party's objections within ten (10) days after being served with a copy thereof.
Plaintiff, a prisoner proceeding pro se, has brought suit against various state and city officials and against a private citizen under 42 U.S.C. § 1983. All defendants, except the private individual Alfred Varelas, brought motions to dismiss on various grounds. The plaintiff moved for default judgment against Varelas.
The motions were referred to Magistrate Judge Kenneth P. Neiman for Report and Recommendation and on August 7, 2003, Judge Nieman recommended that the defendants' Motions to Dismiss be allowed and the plaintiff's Motion for Default Judgment be denied. The plaintiff has now filed his objections to the Report and Recommendation. This court hereby overrules those objections.
The defendants sought dismissal of the complaint on a variety of grounds. Judge Neiman quite correctly concentrated on one clearly dispositive argument. Heck v. Humphrey, 512 U.S. 477 (1994), bars plaintiff's suit. Although, as plaintiff points out in his objection, some superficial differences may exist between this case and Heck, the core of the Heck holding is fatal to all of plaintiff's claims.
In addition, the obvious inadequacy of the claims against Varelas make entry of default judgment against him improper.
For the foregoing reasons, the Report and Recommendation of Magistrate Judge Kenneth P. Neiman is hereby ADOPTED. The defendants' Motions to Dismiss (Docket Nos. 14 and 31) are hereby ALLOWED. The plaintiff's Motion for Default Judgment (Docket No. 36) is hereby DENIED. The clerk is ordered to enter judgment for all defendants, including Varelas.
It is So Ordered.