Opinion
CIVIL ACTION NO. 06-11815-RWZ.
July 26, 2007
MEMORANDUM OF DECISION
I. Background
Plaintiff Edward S. McLarnon ("McLarnon"), acting pro se, has brought the instant action against the City of Malden, Water Works Supply Corporation ("Water Works") and several city officials and individual attorneys, alleging a violation of his civil rights in connection with the prosecution of his civil state court action against the City of Malden and Water Works.
Plaintiff initially brought suit in state court in 2001 against the City of Malden and Water Works, "a licensed corporation located on Eastern Avenue in Malden, Massachusetts" whose property abutted plaintiff's property. (See Amended Complaint ¶¶ 7, 26.) He alleged damage to his real property, including his music recording studio and tape library and that such damage resulted from flooding caused by the City's negligent design, construction, maintenance and repair of its sewer and storm drains, in conjunction with Water Works' negligence in the design and maintenance of its water drainage and waste disposal system. After five days of trial in Middlesex County Superior Court, defendants moved for a directed verdict, which the superior court judge granted. See McLarnon v. City of Malden, No. 01-0660 (Middlesex Super. Ct. Aug. 5, 2004). Plaintiff filed an appeal, but then abandoned his appeal and it was dismissed. See McLarnon v. City of Malden, No. 2006-P-1314 (Mass.App.Ct. April 18, 2007).
Plaintiff now brings this federal action claiming that the participants in the state court action, including his attorney, the judge, the mayor of plaintiff's town, and a state representative in plaintiff's district, engaged in a conspiracy to violate plaintiff's First Amendment right to petition the courts for redress of grievances in violation of 42 U.S.C. § 1983. (See Docket # 2, Amended Complaint.) Now pending are several motions, including: (1) defendants Water Works, Hession, DeMarco and Moore's individual motions to dismiss (Docket ## 3, 5, 25, 27); (2) plaintiff's motion for a default judgment (Docket # 15); (3) plaintiff's motion for an injunction (Docket # 16); and (4) plaintiff's motion to "end corruption and correct the docket" (Docket # 33). I address the pending motions seriatim below.
II. Discussion
A. Defendant Water Works' Motion to Dismiss (Docket # 3)
Plaintiff has alleged two counts against defendant Water Works: (1) violation of 42 U.S.C. § 1983 (individual capacity) (Count II); and (2) negligence and nuisance (Count III). (See Docket # 2-1, Amended Complaint ¶¶ 114-116; 117-120.) Defendant Water Works moves to dismiss both counts against it under Fed.R.Civ.P. 12(b)(6) on the grounds that: (1) the complaint fails to state a claim for a civil rights violation; and (2) the negligence and nuisance claims are barred by the doctrine of issue preclusion.
First, plaintiff alleges that during the state court trial, Water Works (through its counsel) engaged in a conspiracy to violate plaintiff's civil rights when it objected to testimony and evidence, filed motions and participated in sidebars with the court. Such actions, without more, do not adequately allege a conspiracy to violate plaintiff's civil rights and, accordingly, cannot constitute a violation of § 1983. See Polk County v. Dodson, 454 U.S. 312, 317-318 (1981) ("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") (internal citations omitted).
Second, it is blackletter law that issue preclusion prevents re-litigation of an issue where the following four-pronged test is met: "(1) the issue sought to be precluded must be the same as that involved in the prior action; (2) the issue must have been actually litigated; (3) the issue must have been determined by a valid and binding final judgment; and (4) the determination of the issue must have been essential to the judgment." Grella v. Salem Five Cent Sav. Bank, 42 F.3d 26, 30 (1st Cir. 1994). See also Bourque v. Cape Southport Associates, LLC, 60 Mass. App. Ct. 271, 273 (2004). Here, the exact same negligence and nuisance claims were brought and litigated in state court. Accordingly, defendant Water Works' motion to dismiss (Docket # 3) is ALLOWED.
Plaintiff's negligence and nuisance claims are also precluded by the doctrine of res judicata. See Perez v. Volvo Car Corp., 247 F.3d 303, 311 (1st Cir. 2001) ("[t]hree conditions must be met in order to justify an application of the [res judicata] doctrine: (1) a final judgment on the merits in an earlier suit, (2) sufficient identicality between the causes of action asserted in the earlier and later suits, and (3) sufficient identicality between the parties in the two suits") (internal citations omitted); see also Heacock v. Heacock, 402 Mass. 21, 23 (1988) (same).
In general, courts may take judicial notice of pleadings in prior cases. Here, however, neither party has placed the pleadings before the court. However, this court accepts plaintiff's description of the earlier pleadings. (See Docket # 2, Amended Complaint ¶¶ 25-31.)
B. Defendant Hession's Motion to Dismiss (Docket # 5)
Plaintiff has alleged that defendant Gregory Hession ("Hession"), plaintiff's attorney in the state court action, violated his civil rights giving rise to liability under 42 U.S.C. § 1983 and engaged in legal malpractice and conspiracy to violate plaintiff's civil rights (Count IV). (See Docket # 2-1, Amended Complaint ¶¶ 106-113; 114-116; 121-122.) Hession now moves to dismiss on the grounds that: (1) plaintiff's complaint fails to state a claim under 42 U.S.C. § 1983; (2) the court lacks supplemental jurisdiction over plaintiff's state law legal malpractice claim; and (3) even if the court does have supplemental jurisdiction, the legal malpractice claim is without merit.
The Amended Complaint appears to list counts against Attorney Hession in both his official capacity (Count I) and individual capacity (Count II). (See Docket # 2, Amended Complaint at 1, naming Hession "in his professional capacity.") Although it is difficult to see the "official" capacity of trial counsel, I consider the motion as including him in both counts.
First, plaintiff alleges that Hession violated his civil rights by attending a pre-trial conference with the judge and failing to act in his client's best interest, saying "this case has troubles" and "agree[ing] not to bring up at trial the fact that Malden has two sets of blueprints of its drainage system." (Id. at ¶¶ 88-89.) In addition, plaintiff contends, inter alia, that Hession: (a) failed to cross-examine Howard and Russell adequately during trial (id. at ¶ 89(F)); and (b) was either threatened or bribed into inadequately representing plaintiff. (Id. at ¶ 90.)
It is well-established law that private attorneys are generally not considered state actors for purposes of § 1983. See Polk County v. Dodson, 454 U.S. 312, 317-318 (1981) ("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") (internal citations omitted). In order to establish that an attorney is subject to § 1983 liability, "the relevant test . . . is the 'joint action test,' under which private actors are considered state actors if they are 'willful participant[s]' in joint action with the State or its agents."Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 8386, 2002 WL 319887, at *13 (S.D.N.Y. Feb. 28, 2002) (citing Dennis v. Sparks, 449 U.S. 24, 27 (1980)).
Here, it is clear that Hession's cross-examination and trial strategy, even if lacking, do not constitute joint action sufficient to convert plaintiff's attorney into a state actor.See Polk County, 454 U.S. at 325 (plaintiff brought § 1983 action against public defender alleging that she failed to pursue appeal vigorously and was a state actor; court affirmed the dismissal of the § 1983 action and concluded that "a public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding"). Moreover, plaintiff's conclusory allegation that his attorney was either threatened or bribed fails to state a claim. Accordingly, the federal claims are dismissed.
Second, plaintiff's malpractice claim (Count IV) is based entirely on state law. Under 28 U.S.C. § 1367, courts "may exercise supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy." 28 U.S.C. § 1367. However, a court may decline to exercise jurisdiction where it has dismissed all claims over which it has original jurisdiction. See, e.g., 28 U.S.C. § 1367(c)(3); Ametex Fabrics, Inc. v. Just In Materials, Inc., 140 F.3d 101, 105 (2d Cir. 1998) ("district courts may decline to exercise supplemental jurisdiction over a claim . . . if the district court has dismissed all claims over which it has original jurisdiction"); Adams v. Domnaski, No. 04-cv-1697-MRK, 2005 WL 1563327, at *5 (D. Conn. July 1, 2005) (dismissing state law legal malpractice claim where court dismissed § 1983 claim against state court judge). Here, the federal claims against Hession have been dismissed. Accordingly, this court declines to exercise supplemental jurisdiction over plaintiff's legal malpractice claim under § 1367.
Accordingly, defendant Hession's motion to dismiss plaintiff's claims (Docket # 5) is ALLOWED.
C. Defendant DeMarco's Motion to Dismiss (Docket # 25)
Plaintiff has alleged that Defendant Leo P. DeMarco II ("DeMarco"), counsel for Water Works during the state court trial, violated his civil rights in both his official and individual capacities (Counts I and II) based largely on DeMarco's having participated in a sidebar conference and moving for a directed verdict. (See Docket # 2, Amended Complaint, ¶¶ 54-55, 69.) DeMarco moves to dismiss on the ground that he is not a state actor and therefore could not have acted under color of law under 42 U.S.C. § 1983.
As noted above (see Section II.B, supra), attorneys are not considered state actors and are therefore not subject to § 1983 liability. See Polk County v. Dodson, 454 U.S. at 317-318. Accordingly, defendant DeMarco's motion to dismiss plaintiff's claims (Docket # 25) is ALLOWED.
D. Defendant Moore's Motion to Dismiss (Docket # 27)
Defendant Damon C. Moore ("Moore"), president of Water Works, is alleged to have violated plaintiff's civil rights in both his official and individual capacities (Counts I and II). In particular, plaintiff alleges that Moore committed perjury during the state court trial. (See Docket # 2, Amended Complaint, ¶¶ 65(E)-(F); alleging that Moore "lied in interrogatories regarding his knowledge that the rainfall on Water Works['] property was being dumped onto McLarnon's property" and "lied about his knowledge of a system of PVC piping that Water Works started to build to address the flooding"). Moore now moves to dismiss on the ground that as president of a private corporation, he is not a state actor and therefore could not have acted under color of law under 42 U.S.C. § 1983.
Private actors are generally not considered state actors. See Destek Group, Inc. v. State of New Hampshire Public Utilities Commission, 318 F.3d 32, 40 (1st Cir. 2003) ("Only when a private individual's conduct can be deemed 'fairly attributable to the State' will a § 1983 cause of action exist against that individual") (internal quotations omitted); see also Lugar v. Edmondson Oil, 457 U.S. 922, 939 n. 21 (1982) (rejecting notion that "a private party's mere invocation of state legal procedures constitutes joint participation or conspiracy with state officials" for purposes of 42 U.S.C. § 1983) (internal quotations omitted). Plaintiff's allegations that defendant Moore committed perjury, without more, does not adequately state a claim under § 1983. Accordingly, defendant Moore's motion to dismiss plaintiff's claims (Docket # 27) is ALLOWED.
E. Plaintiff's Motion for Default Judgment (Docket # 15)
Plaintiff moves for default judgment against certain defendants on the ground that such defendants failed to answer the complaint. Those defendants are: the City of Malden, Richard Howard, Jack Kelly, Jack Russell, Gary Stead, Edward Wheeler, Stephen Wishoski, Christopher Fallon, Herman Smith, Massachusetts Appeals Court and the Commonwealth of Massachusetts.
Defendant City of Malden's attorney conceded that the City did not respond in a timely manner to the motion for default judgment, but stated that such failure was due to "confusion as to the status of the federal case vis-a-vis the state case." (Docket # 31, Aff. of Edward M. Wheeler ¶ 14.) At a status conference held on June 6, 2007, this court allowed defendants to file an opposition to the motion for default judgment. On June 12, 2007, defendants City of Malden, Richard Howard, Jack Kelly, Jack Russell, Gary Stead, Edward Wheeler and Stephen Wishoski filed an opposition to the plaintiff's motion for a default judgment on the ground that the complaint was never properly served on them under Fed.R.Civ.P. 4. (Docket # 29.)
1. City of Malden
Under Fed.R.Civ.P. 4(e), service may be effected: (1) in a manner that comports with state law (Fed.R.Civ.P. 4(e)(1)); (2) "by delivering a copy of the summons and complaint to the individual personally" (Fed.R.Civ.P. 4(e)(2)); (3) "by leaving copies of the summons at the individual's dwelling house or usual place of abode with a person of suitable age and discretion" (id.); or (4) "by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process." (Id.)
Under Mass. R. Civ. P. 4, service may be effected:
(d)(1) Upon an individual by delivering a copy of the summons and of the complaint to him personally; or by leaving copies thereof at his last and usual place of abode; or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by statute to receive service of process, provided that any further notice required by such statute be given.
(4) Upon a county, city, town or other political subdivision of the Commonwealth subject to suit, by delivering a copy of the summons and of the complaint to the treasurer or the clerk thereof; or by leaving such copies at the office of the treasurer or the clerk thereof with the person then in charge thereof; or by mailing such copies to the treasurer or the clerk thereof by registered or certified mail.
Mass. R. Civ. P. 4(d)(1), (4).
With respect to defendant City of Malden, service was made in two ways: (1) plaintiff personally dropped off copies of the complaint at the City Solicitor's office at the Malden Government Center (Docket # 31, Aff. of Edward M. Wheeler ¶ 8); and (2) certified mail addressed and sent to Steve Wishoski, Malden Redevelopment Authority. (Docket # 7.) Under Mass. R. Civ. P. 4, service upon the City of Malden could be properly effected, inter alia, "by mailing copies [of the summons and complaint] to the treasurer or the clerk thereof by registered or certified mail" or by "delivering a copy of the summons and of the complaint to the treasurer or the clerk thereof; or by leaving such copies at the office of the treasurer or the clerk thereof with the person then in charge thereof." Mass. R. Civ. P. 4(d)(4); see also Fed.R.Civ.P. 4(j)(2) (service upon a state, municipal corporation or other governmental organization may be effected "in a manner prescribed by the law of that state.").
Here, plaintiff delivered a copy of the summons and complaint — not to the treasurer or clerk's office — but to the City Solicitor's office. Next, plaintiff sent a copy of the summons and complaint by certified mail — again, not to the treasurer or clerk's office — but to Steve Wishoski, Malden Redevelopment Authority. Neither method comports with Fed.R.Civ.P. 4 or Mass. R. Civ. P. 4(d)(4) under the plain language of the statutes. Accordingly, plaintiff's motion for a default judgment against the City of Malden is DENIED. Unless plaintiff properly serves the City within (14) fourteen days of this order, plaintiff's claims against it will be dismissed.
2. Individual Defendants
With respect to individual defendants Howard, Kelly, Russell, Stead and Wishoski, it unclear from the record whether and in what manner they were served, as there is no return of service reflected on the docket. Accordingly, the motion for default judgment against them is DENIED.
Defendant Wheeler, the city solicitor, here also sued in his individual capacity, was served by certified mail addressed to him at the Malden Government Center (Docket # 9), and has not yet filed an answer. Service of process by certified mail to defendant Wheeler's place of business does not comport with Fed.R.Civ.P. 4(d). See Hancor, Inc. v. R R Engineering Prods., 381 F. Supp. 2d 12, 16 (D. P.R. 2005) ("[e]xcept where a waiver has been obtained, the Federal Rules of Civil Procedure do not provide for service of original process by mail, including certified mail.") (internal quotation omitted). Accordingly, plaintiff's motion for default judgment as to defendant Wheeler is DENIED.
Similarly, service of process to attorney Fallon by certified mail to his place of business does not comport with Fed.R.Civ.P. 4(d). (See Docket # 14.) Accordingly, plaintiff's motion for default judgment as to defendant Fallon in his individual capacity is DENIED. Unless plaintiff properly serves the individual defendants within (14) fourteen days of this order, the claims against them will be dismissed.
3. State Court Judge
With respect to trial court Judge Herman Smith, the record is unclear whether and in what manner he was served, as there is no return of service entry on the docket. Accordingly, the motion for default judgment against Judge Smith is DENIED.
In addition, "officials acting in a judicial capacity are entitled to absolute immunity against § 1983 actions, and this immunity acts as a complete shield." Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999). Such immunity is overcome only in two circumstances: "First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction." Mireles v. Waco, 502 U.S. 9, 11 (1991) (citations omitted). Neither of those circumstances is present here. The action alleged to have violated plaintiff's civil rights, i.e., directing a verdict in the state court action, is the very core of the judicial function and does not give rise to liability. See Pierson v. Ray, 386 U.S. 547, 553-54 (1967) (dismissing § 1983 claim against state court judge where "the record [was] barren of any proof or specific allegation that [the trial judge] played any role in these arrests or convictions other than to adjudge petitioners guilty.").
Moreover, it is axiomatic that a district court may dismiss a case sua sponte under Fed.R.Civ.P. 12(b) when it is patently obvious that the plaintiff can not prevail on the facts as alleged and when amendment would be futile. See, e.g., Budnick v. Barnstable County Bar Advocates, Inc., Civ. No. 92-1933, 1993 WL 93133, at *2 (1st Cir. 1991); see also Rolle v. Berkowitz, Civ. No. 03-7120, 2004 WL 287678, at *2 (S.D.N.Y. Feb. 11, 2004) (court dismissed sua sponte meritless § 1983 complaint brought against state court judge on the ground that the state court judge was immune from suit). Accordingly, the claims against Judge Smith are DISMISSED.
4. Massachusetts Appeals Court and Commonwealth of Massachusetts
With respect to the Massachusetts Appeals Court and the Commonwealth of Massachusetts, the docket reflects that they were properly served via certified mail addressed to the Commonwealth of Massachusetts Attorney General's office (Docket # 11) and the Massachusetts Appeals Court (Docket # 13). See Fed.R.Civ.P. 4(e)(1); Mass. R. Civ. P. 4(d)(3). Neither defendant has responded. However, this court denies the motion for default judgment on the ground that plaintiff cannot prevail on the facts as alleged. Both the Massachusetts Appeals Court and the Commonwealth of Massachusetts are immune from suit under the Eleventh Amendment. See U.S. Const. amend. XI; Rosie D. ex rel. John D. v. Swift, 310 F.3d 230, 233 n. 2 (1st Cir. 2002) ("the [ Eleventh] amendment consistently has been read to render a state immune from suits brought in federal courts both by its own citizens and by citizens of other states") (citing Employees of Dep't of Pub. Health Welfare v. Dep't of Pub. Health Welfare, 411 U.S. 279, 280 (1973)). Accordingly, this court sua sponte dismisses the complaint against them. See Budnick, 1993 WL 93133, at *2 (a district court may dismiss a case sua sponte under Fed.R.Civ.P. 12(b) when it is patently obvious that the plaintiff could not prevail on the facts alleged and when amendment would be futile). Accordingly, the claims against the Massachusetts Appeals Court and the Commonwealth of Massachusetts are DISMISSED.
That section provides:
Service shall be made as follows:
(d)(3) Upon the Commonwealth or any agency thereof by delivering a copy of the summons and of the complaint to the Boston office of the Attorney General of the Commonwealth, and, in the case of any agency, to its office or to its chairman or one of its members or its secretary or clerk. Service hereunder may be effected by mailing such copies to the Attorney General and to the agency by certified or registered mail.
Mass. R. Civ. P. 4(d)(3) (emphasis added).
That amendment states: "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
In summary, plaintiff's motion for a default judgment (Docket # 15) is DENIED as to the City of Malden; DENIED as to individual defendants Wheeler, Howard, Kelly, Russell, Stead, Wishoski and Fallon; DENIED as to state court judge Smith; and DENIED as to the Massachusetts Appeals Court and the Commonwealth of Massachusetts. Moreover, the claims against the state defendants (Judge Smith, Massachusetts Appeals Court and the Commonwealth of Massachusetts) are DISMISSED.
F. Plaintiff's Motion for an Injunction (Docket # 16)
In addition his civil rights suit, plaintiff moves for an injunction against the City of Malden and the Malden Redevelopment Authority. In particular, plaintiff seeks to enjoin both defendants from developing a shopping center between plaintiff's home and the state canal. He seeks an order that the defendants:
cease and desist any and all real estate development in Plaintiff's section of Malden until such time as Malden can demonstrate via a dye-test that drainage water from Plaintiff's Street, Hanover Street, makes it to the state canal as depicted in the Drainage System Master blueprint that depicts a pipe to the canal AS FUNCTIONING PROPERLY.
(Docket # 16, Pl.'s Motion for Injunction at 4, emphasis in original.) In addition, plaintiff requests:
a court order for Malden to correct the "hydraulically deficient" drainage system within a reasonable amount of time — preferably within 60 — 90 days as determined by the discretion of this court considering, of course, that the Spring rains have started and the seriousness of the situation calls for immediate action.
(Docket # 16, Pl.'s Motion for Injunction at 4.)
The City of Malden opposes the motion for an injunction on the grounds that: (1) the complaint seeking an injunction was not properly served on the defendants; (2) the relief sought here has already been sought and denied in state court and is therefore precluded by the doctrine of res judicata; (3) plaintiff has not set forth the basis of jurisdiction; and (4) plaintiff has not "set forth any means by which he might give security" as required by Fed.R.Civ.P. 65(c).
Since this defendant was not properly served and since plaintiff has in any event failed to identify a basis for federal jurisdiction to grant the injunction (which appears to be based on state law nuisance or negligence claims), the motion for an injunction is denied. See 28 U.S.C. § 1367(c)(3); cf. Colonize.com Inc. v. Perlow, Civ. 03-466, 2003 WL 24256576, at *3 (N.D.N.Y. Oct. 23, 2003) (court had supplemental jurisdiction over plaintiff's state law claims which formed the basis of plaintiff's request for an injunction).
G. Plaintiff's Motion to "End Corruption and Correct the Docket" (Docket # 33)
Finally, plaintiff moves to "end corruption and correct the docket." In particular, plaintiff alleges that this court and defendants are "conspiring with and aiding and abetting [the trial judge's] criminal acts and treason." (Docket # 33.) As evidence of this conspiracy, plaintiff points to the fact that during the June 6, 2007 hearing, I allegedly stated that the state court trial judge had immunity for his actions. (Id.) Plaintiff's argument is unavailing. It is "well established that officials acting in a judicial capacity are entitled to absolute immunity against § 1983 actions, and this immunity acts as a complete shield." Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999). As noted above (see Section II.E.3, supra), the action alleged to have violated plaintiff's civil rights here, i.e., directing a verdict in the state court action, is the very core of the judicial function and cannot give rise to liability.
Next, plaintiff objects to the fact that his Affidavit Regarding Illegal Alterations to Trial Transcript (Docket # 35), which was handed to the court clerk on June 6, 2007, was not promptly docketed. The docket currently reflects that plaintiff's affidavit was filed both on June 6, 2007 (Docket # 35) and on June 19, 2007 (Docket # 33). Plaintiff's motion with respect to corruption is without merit and is therefore DENIED and his motion is MOOT with respect to the docket, as the docket is now correct.
H. Plaintiff's Ex Parte Motion to Expedite Rulings (Docket # 18)
As the court has now decided all pending motions, plaintiff'sex parte motion to expedite rulings on such motions is DENIED as moot.
III. Conclusion
Defendants' respective Motions to Dismiss (Docket ## 3, 5, 25, 27) are ALLOWED; Plaintiff's Motion for Default Judgment (Docket # 15) is DENIED; Plaintiff's Motion for an Injunction (Docket # 16) is DENIED; Plaintiff's Motion to End Corruption and Correct the Docket (Docket # 33) is DENIED in part and MOOT in part; Plaintiff's Ex Parte Motion to Expedite Rulings (Docket # 18) is DENIED as MOOT. The claims against the state defendants (Judge Smith, Massachusetts Appeals Court and the Commonwealth of Massachusetts) are DISMISSED sua sponte.
Plaintiff is to make service on the City of Malden and individual defendants Howard, Kelly, Russell, Stead, Wishoski, Wheeler and Fallon within fourteen (14) days. Failure to do so will result in dismissal of the action against those defendants.