Aldrich v. Ruano

952 F.Supp.2d 295

Robert ALDRICH, Plaintiff,

v.Raquel RUANO, Defendant.

Civil Action No. 13–10754–WGY.

United States District Court, D. Massachusetts.

June 24, 2013.

Robert Aldrich, Shirley, MA, pro se.

MEMORANDUM

YOUNG, District Judge.

On March 25, 2013, the plaintiff Robert Aldrich (“Aldrich”), a prisoner in custody at MCI Shirley, in Shirley, Massachusetts, filed a civil rights action alleging: (1) a violation of his constitutional rights pursuant to 42 U.S.C. § 1983; (2) a violation of 18 U.S.C. § 2511 et seq. (prohibiting the unauthorized interception, disclosure, and use of wire, oral, or electronic communications unless an exception is specifically authorized); (3) a violation of 28 U.S.C. § 1927 (providing for counsel's liability for excessive costs incurred because of unreasonable and vexatious conduct); and (4) a claim under Mass. Gen. Laws ch. 272, § 99 (making illegal the recording of a conversation or telephone call unless both parties consent to the recording). He names as the defendant Attorney Raquel Ruano (“Ruano”), a defense attorney representing Boston Police Officer Kevin Doogan and others in a previously-filed lawsuit, Aldrich v. Town of Milton, et al., Civil Action No. 09–11282–WGY.

In that earlier case, Aldrich alleged, inter alia, racial profiling and Fourth Amendment violations in connection with a traffic stop and search of the vehicle driven by him on March 7, 2007. On March 11, 2013, a jury trial commenced, and on March 15, 2013, the jury returned a verdict for the defendants. Judgment in favor of the defendants entered on March 19, 2013. See Judgment (Docket No. 431). On March 20, 2013, Aldrich filed a Notice of Appeal to the United States Court of Appeals for the First Circuit (“First Circuit”). See Notice of Appeal (Docket No. 432). That appeal is pending.

Thereafter, Aldrich filed the instant action alleging that on March 12, 2013, during the jury trial in Aldrich v. Town of Milton, et al., Attorney Ruano illegally eavesdropped and used a cellular telephone to record his private conversation with trial witnesses inside the courtroom, in order to impede and interfere with Aldrich's constitutional right of access to the courts. Specifically, Aldrich alleges that this Court authorized him to conference with his witnesses inside the courtroom because he is a prisoner in state custody (and thus unable to move about freely). He was sitting at a table with two of his witnesses ( i.e., his mother and father). Attorney Ruano sat at the table beside him. He claims that she activated features on her cell phone and then placed the cell phone on the table, at an angle pointed toward him. During his conversation with his parents, she continued to touch the screen and moved the cell phone as if accessing its features. After Aldrich concluded his conversation, Attorney Ruano asked to speak with him, and accused him of violating the Court's sequestration order by discussing the case with sequestered witnesses. She indicated that she had “overheard” Aldrich discussing the case. Aldrich then asked her whether she had permission to use her cell phone in the courtroom and record his conversations. He accused her of violating his privacy. Attorney Ruano responded that, as an attorney, she was permitted to have a cell phone in the courtroom. Aldrich claims she did not deny that she had recorded his conversation.

When trial resumed, Attorney Ruano brought the matter to this Court's attention, at which time Aldrich objected and complained about the violation of his privacy rights. This Court dismissed Attorney Ruano's allegations concerning violation of the sequestration order since Aldrich was acting pro se and needed to prepare his witnesses. The Court took no action on Aldrich's oral complaint of eavesdropping.

Aldrich alleges that the next day, Attorney Ruano had initiated a subpoena process through her co-counsel, and served subpoenae on his parents while they were waiting in the conference room. The subpoenae commanded them to appear in court on March 14, 2013, and to produce a copy of all letters written by him to them, since March 9, 2007. When his witnesses took the stand, Attorney Ruano examined them and accused them of concealing the contents of their conversation with Aldrich the previous day. She also accused them of testifying as Aldrich had directed them to testify, in violation of the sequestration order. Aldrich objected, and at sidebar, again complained about Attorney Ruano's eavesdropping. He stated her allegations were not true and were intended to influence the jury to discredit and intimidate his witnesses. This Court took no action on Aldrich's assertions, but instructed Attorney Ruano to move on with her questioning.

On March 15, 2013, Attorney Ruano engaged the services of a private investigator to eavesdrop on Aldrich's witnesses while they were sitting in the conference room adjacent to the courtroom. That investigator was called as a witness and questioned about what he overheard the witnesses discussing. Over Aldrich's objection, the private investigator stated that he heard that Aldrich's father had two [of the requested] letters but he was not going to produce them. The investigator also testified that his mother stated that [Aldrich's father's plan of action] was good. Aldrich asserts that this tactic was used as a tool to discredit his witnesses. He contends that Attorney Ruano stressed the lack of credibility during her closing argument, and that the jury was persuadedby her arguments, resulting in a verdict in favor of the defendants.

Finally, Aldrich contends that as a result of Attorney Ruano's eavesdropping and recording of his conversation, she substantially affected the jury and contributed to his loss of his civil action and an award of damages.

He seeks declaratory and injunctive relief, as well as punitive damages and compensatory damages of $700,000.00. Along with the Complaint, Aldrich filed an Application and a Motion for Leave to Proceed in forma pauperis (Docket No. 2), without a certified prison account statement. Thereafter, on May 22, 2013, Aldrich filed a Motion to Appoint Counsel (Docket No. 4), and a Motion for Leave to Effectuate Service of Process by United States Marshal and to Waive Fees/Costs (Docket No. 5).

On May 31, 2013, this Court entered an Electronic Order (Docket No. 7) denying Aldrich's motion, however, the Electronic Order did not specify to which motion the ruling referred. Additionally, the Electronic Order dismissed this case, stating, in part: “Case dismissed sua sponte for failure to state a cause of action. An opinion will follow.” Id.

On June 17, 2013, Aldrich filed a Notice of Appeal (Docket No. 8). See Aldrich v. Ruano, No. 13–1798 (1st Cir.2013).

ANALYSIS

This Memorandum sets forth the reasons for dismissal of this action pursuant to the Electronic Order, and clarifies the rulings on Aldrich's Motions.

I. The Motion for Leave to Proceed In Forma Pauperis

Where, as here, the plaintiff is a prisoner, a request to proceed without prepayment of the filing fee must be accompanied by “a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6–month period immediately preceding the filing of the complaint ... obtained from the appropriate official of each prison at which the prisoner is or was confined.” 28 U.S.C. § 1915(a)(2). This information is necessary for the Court to assess Aldrich's filing fee obligations pursuant to 28 U.S.C. § 1915(b).

As noted above, Aldrich failed to file his certified prison account statement as required. Accordingly, this Court will DENY Aldrich's Motion for Leave to Proceed in forma pauperis (Docket No. 2) as defective.

Notwithstanding the denial of this motion, however, this does not absolve Aldrich from his obligations to pay the entire $350.00 filing fee for this action, which was due at the time of filing of the Complaint. This Court will enter an Order assessing Aldrich's filing fee obligations pursuant to 28 U.S.C. § 1915(b) upon receipt of his prison account statement filed in connection with any Motion for Leave to Proceed on Appeal in forma pauperis, which must be filed with the District Court in the first instance. Aldrich is advised that failure to satisfy the filing fee requirements of the United States Court of Appeals for the First Circuit (“First Circuit”) may result in the dismissal of his appeal by the First Circuit.

II. The Motion For Leave to Effectuate Service of Process by the United States Marshal

In light of the dismissal of this action on May 31, 2013, and in view of the denial of Aldrich's in forma pauperis motion, Aldrich's Motion for Leave to Effectuate Service of Process by United States Marshal and to Waive Fees/Costs (Docket No. 5) will be DENIED as moot.

III. Screening of the Complaint

The Prison Litigation Reform Act (“PLRA”), Title VIII of Pub. L. 104–134, 110 Stat. 1321–1375 (1996) includes several provisions which grant this Court the authority to screen and dismiss prisoner complaints. See28 U.S.C. § 1915 (proceedings in forma pauperis ); ¹28 U.S.C. § 1915A (screening of suits against governmental officers and entities).²

Here, however, Aldrich has not been permitted to proceed in forma pauperis and is not suing a governmental officer or employee. Thus, no preliminary screening was authorized under these statutory provisions. Nevertheless, this Court always has inherent authority to review a case to determine, among other things, whether or not it is frivolous as that term is used in legal parlance. See Bustos v. Chamberlain, 2009 WL 2782238, *2 (D.S.C.2009) (noting that the court has inherent authority “to ensure a plaintiff has standing, that subject matter jurisdiction exists, and that a case is not frivolous”) citing, inter alia, Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 307–308, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989); Pillay v. INS, 45 F.3d 14,...