Cannon v. Lowell Dist. Court

JOSEPH SHEROD CANNON, Plaintiff, v. LOWELL DISTRICT COURT, et al., Defendants.

Civil Action No. 15-13565-FDS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

May 5, 2016

MEMORANDUM AND ORDER

SAYLOR, J.

I. Introduction

On August 3, 2015, plaintiff Joseph Sherod Cannon, a prisoner in custody in a state facility in East Elmhurst, New York, filed a civil rights complaint in the United States District Court for the Southern District of New York. Cannon v. Lowell District Court, et al., Civil Action No 15-6105 (LAP). Cannon listed the defendants as (1) the Lowell District Court; (2) John Murphy; (3) Douglas Parigian; (4) Robert Normandin; (5) Mark Hooper; (6) "District Attorney of Lowell District Court"; (7) "District Attorney of Lawrence District Court"; (8) Billerica House of Correction; (9) Bridgewater State Hospital; and (10) the Chelmsford Police Department. Along with the complaint, Cannon filed a motion for leave to proceed in forma pauperis, a prisoner authorization form, and a motion for appointment of pro bono counsel.

On October 7, 2015, Judge Loretta A. Preska issued a transfer order directing that the action be transferred from the Southern District of New York to this Court pursuant to 28 U.S.C. § 1406(a).

The complaint is sparse and not entirely coherent. From what can be discerned, it appears that Cannon is alleging that he was falsely imprisoned based on a probation violation detainer in October 2013. He contends his probation officer, John Murphy, lied to the judge by stating that he had failed to report to probation. He further contends that he did not receive notice of the probation violation until April 17, 2014, when he appeared in the Lawrence District Court. At that time, his defense counsel, Robert Normandin, withdrew from Cannon's case.

Additionally, Cannon contends that paperwork from the District Attorney's Office states that he was sentenced on January 7, 2014; however, Cannon asserts that he actually was sentenced on the following day, January 8, 2014. The remainder of the complaint simply contains the names the defendants and lists other unnamed defendants. As relief, Cannon seeks monetary damages.

II. Discussion

A. The Motion for Leave to Proceed In Forma Pauperis

Cannon has filed a financial affidavit indicating that he has no income or assets apart from $1.11 in his account. He did not submit a certified prison account statement; however, as is the practice at the New York facility, where he is incarcerated, he executed a prisoner authorization form that authorizes the agency having custody of him, or any agency to which he is transferred, to send a certified copy of his prison trust fund account for the past six months to this Court. The prisoner authorization further authorizes the agency to calculate the amounts specified by 28 U.S.C. § 1915, to deduct those amounts from Cannon's prison trust fund account (or institutional equivalent), and to disburse those amounts to this Court. In another civil suit filed recently in this Court, Judge Burroughs granted Cannon leave to proceed in forma pauperis based on the same financial disclosures. She also directed the agency having custody of him to calculate Cannon's filing fee obligations pursuant to 28 U.S.C. § 1915(b) and disburse those amounts to this Court. See Cannon v. Noel, et al., Civil Action No. 15-14196-ADB (Order, Docket No. 8, dated January 12, 2016).

Under the circumstances, the Court will grant Cannon's motion for leave to proceed in forma pauperis and directs that the agency having custody over Cannon calculate the amounts specified in 28 U.S.C. § 1915(b), deduct those funds from Cannon's prison account, and disbursepayments to this Court as required under 28 U.S.C. § 1915.

B. Screening of the Complaint

Under 28 U.S.C. § 1915(e)(2), the Court may conduct a preliminary review of the complaint brought by a litigant proceeding without prepayment of the filing fee. Similarly, under 28 U.S.C. § 1915A, prisoner complaints in civil actions that seek redress from a governmental entity or from officers or employees of a governmental entity are also subject to screening. Both § 1915 and § 1915A authorize federal courts to dismiss a complaint sua sponte if the claims are frivolous, malicious, fail to state a claim on which relief can be granted, or seek monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b).

In view of Cannon's allegations of violations of his constitutional rights, and his use of a template complaint form for claims under § 1983, this Court construes this action as one brought pursuant to 42 U.S.C. § 1983. In conducting the preliminary screening, this Court must liberally construe the complaint because Cannon is proceeding pro se. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972); Instituto de Educacion Universal Corp. v. U.S. Dept. of Education, 209 F.3d 18, 23 (1st Cir. 2000). Even under a liberal construction, however, there are a number of legal impediments to this action.

C. Failure to Set Forth Plausible Claims

In determining whether a pro se complaint fails to state a claim for purposes of 28 U.S.C. §§ 1915(e)(2) and 1915A, courts "use the same standard that governs dismissals under Fed. R. Civ. P. 12(b)(6)." Jenkins v. Walker, 620 Fed. Appx. 709, 710 (11^th Cir. 2015). The Court "must assume the truth of all well-plead[ed] facts and give plaintiff the benefit of all reasonable inferences therefrom." See Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)). To survive review, the complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, "[f]actual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even ifdoubtful in fact)." Id. at 555 (citations omitted). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if plaintiff's well-pleaded facts do not "possess enough heft to show that plaintiff is entitled to relief." Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 84 (1st Cir. 2008) (quotations and original alterations omitted).

Here, the only discernible allegation of wrongdoing by any defendant is the claim that Cannon's probation officer allegedly lied to the court in connection with his probation violation hearing. The complaint does not, however, allege sufficient underlying facts to state a plausible claim. He fails to set forth the "when, where, and why" information necessary to give this defendant sufficient notice of the claim.

The complaint does not include any allegations showing that Cannon is entitled to relief with respect to any other defendant. The complaint simply lists names of the defendants and others not named as defendants. By collectively asserting his claims against the defendants, the complaint fails meet the pleading requirements for proceeding in this Court. See Bagheri v. Galligan, 160 Fed. Appx. 4, 5, 2005 WL 3536555, *1 (1st Cir. 2005) (finding complaint deficient because, inter alia, it failed to state clearly which defendant or defendants committed each of the alleged wrongful acts); see also Atuahene v. City of Hartford, 10 Fed. Appx. 33, *34, 2001 WL 604902, *1 (2nd Cir. 2001) (stating "[b]y lumping all the defendants together in each claim and providing no factual basis to distinguish their conduct, [plaintiff's] complaint failed to satisfy [the] minimum standard . . . .").

Accordingly, this action is subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

D. Billerica House of Correction

The complaint names the Billerica House of Correction as a defendant. Jails and prisons, however, are only buildings; they are not entities subject to suit. See, e.g., Owens v. Scott County Jail, 328 F.3d 1026, 1027 (8th Cir. 2003) (per curiam); Marsden v. Fed. Bureau ofPrisons, 856 F. Supp. 832, 836 (S.D.N.Y. 1994) ("a jail is not an entity that is amenable to suit.").

E. Attorney Robert Normandin

The complaint names Cannon's former defense counsel, Robert Normandin, as a defendant. There is no allegation, however, that Normandin acted under color of state law. A claim under § 1983 is limited to "person[s] who [act] under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia." 42 U.S.C. § 1983. See Klunder v. Brown University, 778 F.3d 24, 31 (1st Cir. 2015) citing Estades-Negroni v. CPC Hosp. San Juan Capestrano, 412 F.3d 1, 4 (1st Cir. 2005) (setting forth three-part test for state action).

Here, it appears that Normandin was appointed by the state court to defend Cannon. Such an appointment is insufficient to make him a state actor. "It is well settled that state appointed attorneys performing traditional functions as counsel do not act under color of state law within the meaning of 42 U.S.C. § 1983." Dunker v. Bissonnette, 154 F. Supp. 2d 95, 105 (D. Mass. 2001) (citing Polk County v. Dodson, 454 U.S. 312, 325 (1981), and Harris v.Champion, 51 F.3d 901, 909-10 (10th Cir. 1995)). See Malachowski v. City of Keene, 787 F.2d 704, 710 (1st Cir. 1986) ("A private attorney who is sued for actions allegedly taken as court-appointed counsel does not act under color of state law.") (citations omitted). Indeed, "[e]ven when the defective performance of the state appointed attorney causes 'the trial process to deprive an accused person of his liberty in an unconstitutional manner, the lawyer who may be responsible for the unconstitutional state action does not himself act under color of state law within the meaning of § 1983.'" Dunker, 154 F. Supp. 2d at 105 (quoting Briscoe v. LaHue...