Howell v. City of Lowell

CURTIS HOWELL, Plaintiff, v. CITY OF LOWELL MAYOR LEAHY, LOWELL POLICE DEPARTMENT, LOWELL REGIONAL TRANSIT AUTHORITY, Defendants.

Civil Action No. 21-11974-AK

United States District Court, D. Massachusetts

May 5, 2022

ORDER

ANGEL KELLEY, U.S. DISTRICT JUDGE

1. Pro se plaintiff Curtis Howell's (“Howell”) motion to proceed in forma pauperis [Dkt. 2] is ALLOWED, except the motion for attorneys' fees and costs attached to that document [id. at 5-6], is DENIED without prejudice as premature. Howell's second motion to proceed in forma pauperis [Dkt. 13] is DENIED as MOOT. Because Howell is proceeding in forma pauperis, his complaint is subject to screening under 28 U.S.C. § 1915(e)(2). Section 1915 authorizes the federal courts to dismiss an action in which a plaintiff seeks to proceed without prepayment of the filing fee if, among other things, 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); Neitzke v. Williams, 490 U.S. at 325; Denton v Hernandez, 504 U.S. 25, 32-33 (1992); Gonzalez-Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir. 2001). In conducting this review, the Court liberally construes Howell's complaint because he is proceeding pro se. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S 519, 520 (1972); Instituto de Education Universal Corp v. U.S. Dept. of Education, 209 F.3d 18, 23 (1st Cir. 2000).

2. Howell shall, by May 26, 2022, file an amended complaint that complies with the basic pleading requirements of the Federal Rules of Civil Procedure and cures the defects identified or this action will be DISMISSED without prejudice.

Under the Rules, a 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 Puertorriquenos en Action 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. In essence, the complaint must succinctly 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. Put another way, a complaint must clearly identify the claims and relief Howell seeks as to each defendant, and provide sufficient factual bases for each of the elements of the claims that he asserts. The caption must identify all defendants. Fed.R.Civ.P. 10(a).

The amended complaint [Dkt. 12 (“Am. Compl.”)], while an improvement over the original complaint [Dkt. 1], seeks $50, 500, 000 against the City of Lowell (apparently through its Mayor in his official capacity), the Lowell Police Department, the Lowell Regional Transit Authority, and the United States Department of Justice for violations of 28 U.S.C. § 1983 and 42 U.S.C. § 1981. Howell claims alleged mistreatment by unidentified, non-defendant Lowell police officers relating to his arrest and detention arising out of a May 19, 2019 incident and of later failing to investigate a sexual assault and log a Department of Justice complaint. [Am. Compl. at ¶¶ 47-52, 55-56]. He separately claims that a bus driver hit a plastic partition while his hand was on it, yelled at him, and made a racial remark to him concerning his sitting in the front of the bus. [Am. Compl. at ¶¶ 53-55]. Howell apparently claims the Department of Justice took no action after he filed a complaint and requested assistance from it.

As for the claims relating to the Lowell police officers' conduct, Howell names the Mayor apparently in his official capacity, see Am. Compl. caption (“City of Lowell (Mayor Leahy)”) and (“Lowell Police Department”), as applicable to these claims. While this is, of course, Howell's choice to not sue individual defendants in their personal capacities, “[a] suit against a public official in his official capacity is a suit against the governmental entity itself.” Surprenant v. Rivas, 424 F.3d 5, 19 (1st Cir. 2005). “Municipalities cannot be held liable for the constitutional violations of municipal employees pursuant to the doctrine of respondeat superior, ” Welch v. Ciampa, 542 F.3d 927, 941 (1st Cir. 2008) (citing Monell v. Dep't of Social Servs., 436 U.S. 658, 691 (1978)), meaning that the City is not vicariously liable for the conduct of its officers because of its relationship to those officers. Rather, “municipalities can be liable for constitutional violations only if the violation occurs pursuant to an official policy or custom.” Id. Here, Howell does not plausibly allege the violation of any City policy or custom. Accordingly, the Section 1983 claim as to the named defendants in this action, and as pleaded, is subject to dismissal.

As for claims under 28 U.S.C. § 1981 against the City, the “‘exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units' is section 1983.” Alston v. Town of Brookline, 997 F.3d 23, 42 (1st Cir. 2021) (quoting Buntin v. City of Boston, 857 F.3d 69, 70-71 (1st Cir. 2017)). “Thus, a plaintiff ‘may not bring claims for damages under 42 U.S.C. § 1981 against state actors.'” Id. (citations and quotations omitted). Further, there are no plausibly pleaded allegations made with respect to the identified defendants denying equal access to goods, services, and accommodations of public services under 42 U.S.C. § 2000a, and disability discrimination under 42 U.S.C. § 12133. Thus, all of the remaining pleaded bases for liability of the City are subject to dismissal.

As to the claims concerning the Lowell Regional Transportation Authority (“LRTA”), similar to the Massachusetts Bay Transportation Authority, the LRTA is an agency of the state and therefore not a “person” under Section 1983. See Fraser v. Massachusetts Bay Transportation Auth., 544 F.Supp.3d 148, 164 (D. Mass. 2021) (dismissing Section 1983 claim against the MBTA because not a person under that statute); Powell v. MBTA, CV 20-10120-RGS, 2020 WL 708536, at *2 (D. Mass. Feb. 12, 2020) (holding that “as an agency of the Commonwealth, the MBTA cannot be sued under § 1983”). The Lowell Regional Transportation Authority was established as “a political subdivision of the Commonwealth [of Massachusetts]” and includes the “city of Lowell and the towns of Billerica, Chelmsford, Dracut, Tewksbury, Tyngsboro and Westford.” Mass. Gen. Laws Ann. ch. 161B, § 2. Accordingly, as an arm of the state it is not a “person” under Section 1983. Further, Section 1981 claims against the LRTA fail for the same reasons as against the City. See Alston v. Town of Brookline, 997 F.3d at 42; Brooks v. Martha's Vineyard Transit Auth., 433 F.Supp.3d 65, 76 (D. Mass. 2020) (ruling Martha's Vineyard Transportation Authority not amenable to a Section 1981 action).

With respect to the Department of Justice, it appears that while Howell complains about the Department of Justice's failure to relocate him, the Statement of Claims only refers to the Lowell Police's failure “to investigate the sexual assault against [him] at [his] home and did [sic] log in the evidence nor the department of justice complaint.” [Am. Compl. at ¶ 56]. On these sparse facts no claim is plausibly pleaded. Moreover, even presuming, without ruling, that the claim properly alleged “a constitutional tort for failure to investigate the crimes of government officers and employees in violation of Bivens v. Six Unknown Fed. Narcotis Agents, 403 U.S. 388 (1971) or the Federal Torts Claims Act, . . . a federal agency is not a proper party in a Bivens action, see Federal Deposition Ins. Corp. v. Meyer, 510 U.S. 471 (1994), or in a FTCA suit, see Galvin v. Occupational Safety & Health Admin., 860 F.2d 181 (5th Cir. 1988); Hooker v. S.Ct. U.S., CV 04-3454, 2005 WL 8173979, at *3 (E.D. La. May 27, 2005). Accordingly, the action against the Department of Justice is subject to dismissal.

Finally, although Howell recites statutes 42 U.S.C. § 2000a-6 and 42 U.S.C. §12133 as bases for liability of all of the defendants, Howell fails to separately set forth sufficiently pleaded factual allegations for liability as to each defendant as to each statute. He is provided an opportunity to do so now.

At this stage, it is unfair to require the defendants to respond to the complaint in its current form. Accordingly, to the extent Howell wishes to proceed, he shall file an amended complaint. The amended complaint - a new, stand-alone document - must set forth plausible claims upon which relief may be granted. In preparing the amended complaint, Howell should not set forth his claims in a narrative format. Rather, any amended complaint should, in sequentially numbered paragraphs, focus on the legal claims separately against each defendant, along with the basis for such claims. The complaint must include separate counts. In other words, Howell should set forth plausibly pleaded facts as to who did what to whom, when, and where. He should not assert multiple claims against a defendant in one count; rather, he should identify separately each claim and the grounds therefore. If an amended complaint is filed, it will be further screened. While...