ANDRE v. MORIARTY
| Decision Date | 04 April 2011 |
| Docket Number | Civil No. 11-40009-FDS |
| Parties | DONALD K. ANDRE, JR., Plaintiff, v. JUDGE MORIARTY, et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
OPINION TEXT STARTS HERE
On January 11, 2011, plaintiff Donald K. Andrew, Jr., a prisoner at the Worcester County Jail and House of Correction in West Boylston, Massachusetts, filed a voluminous (579-page) self-prepared civil rights complaint (with attachments) against a number of defendants, including state court judges, clerks, prosecutors, attorneys, sheriffs, and prison officials. Specifically, the named defendants are: (1) Judge Moriarty; (2) Judge Lemire; (3) Sheriff Guy Glodis; (4) Special Sheriff Jeffrey Turco; (5) Deputy Chappel; (6) Lt. Betty; (7) Representative Paolo Franseze; (8) Clerk of Records Difilippo Luigi, (9) Steve Kennedy; (10) Carmen Eldrige; (11) Assistant Superintendent Legendre; (12) Dennis P. McManus; (13) Clerk Connie; (14) Tony Rabidon; (15) Kevin Gabidon; (16) Catherine Brennan; (17) "Tempsey"; (18) Joseph D. Early, Jr.; (19) Glenn Ludwig, Chief of the Forfeiture Unit; (20) Sandra Hautanen, Assistant District Attorney; (21) Attorney Patrick Burke; (22) Attorney Loconto; and (23) Attorney John Goggins.
Andre's complaint stems from his state criminal trial on drug trafficking charges. These charges arose from a search of Andre's apartment on February 26, 2010, after police detectives of the Southbridge Police Department obtained a warrant authorizing the search. The warrant was based on information obtained from two confidential informants who observed Andre selling heroin in two separate controlled buys. The search uncovered a plastic bag with 25 grams of heroin, a digital scale, plastic baggies, cutting agents, and other drug-related paraphernalia, as well as $4,162 in cash.
Andre's hand-written complaint is not entirely coherent or organized, and is set forth essentially in narrative form. In brief, Andre's civil action makes sweeping allegations that his civil and constitutional rights were violated by the various personnel at the Worcester County Jail and House of Corrections ("WCJHC"), the judges presiding over his state criminal trial and related hearings, prosecutors, court clerks, and others. Andre alleges that the defendants conspired to deprive him of his access to the courts by tampering with, and destroying, his mail. He further alleges that defendants' conduct "railroaded" his defense, thereby preventing him from having meaningful access to the courts in violation of 42 U.S.C. § 1983 and the First, Fourth, Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution.
Counts I and II of the complaint allege due process and equal protection violations under 42 U.S.C. § 1983 against Judge Cornelius J. Moriarty and Judge James R. Lemire. Andre alleges that Judge Moriarty arbitrarily denied his motions during trial, and otherwise acted unfairly, improperly, unprofessionally, and with bias. Andre asserts that Judge Moriarty's conduct makes him a joint participant in the conspiracy by defendants to "railroad" his defense and deprive him of his constitutional rights.
With respect to Judge Lemire, Andre alleges that he disregarded and unlawfully admitted exculpatory evidence, ignored police misconduct, erred in denying his court motions, ignored clerical errors made by court personnel, openly mocked him, condoned the destruction of his mail by court clerks, and neglected to control courtroom misconduct by court officers and others. Andre seeks compensatory and punitive damages as well as declaratory and injunctive relief.
Counts III and IV of the complaint allege § 1983 violations based on the conduct of a number of officers and personnel at WCJHC and Worcester Superior Court. In particular, Andre alleges that personnel at WCJHC and Worcester Superior Court conspired to "railroad" the defense of his criminal case by interfering with, and destroying, his mail, and otherwise preventing him from communicating with the court. He further alleges mail fraud and forgery by these individuals. Additionally, Andre alleges that Clerk Magistrate Dennis McManus is liable because he failed to prevent the misconduct of his subordinates. He seeks compensatory and punitive damages, as well as declaratory and injunctive relief.
Count V of the complaint raises violations of § 1983 by individuals at the District Attorney's Office including Joseph Early (District Attorney), Glenn Ludwig (Chief Assistant District Attorney of the Forfeiture Unit), and Sandra Hautanen (Assistant District Attorney). Against defendant Hautanen, Andre alleges that she facilitated the conspiracy by knowingly failing to object in court to false statements, and by committing perjury in court proceedings. Similarly, Andre alleges that defendants Early and Ludwig were aware of the conspiracy against Andre and failed to stop it, making them liable as well. He seeks compensatory and punitive damages as well as declaratory and injunctive relief against these defendants.
Count VI of the complaint alleges violations of § 1983 by attorney Patrick Burke and attorney Loconto. Andre's wife, Danielle Thurlow, was represented by attorney Burke in the underlying criminal case. Attorney Loconto's connection to the case is not clear from the complaint. In any event, Andre alleges that these defendants manipulated, defrauded, and coerced Ms. Thurlow into accepting a plea bargain with the Commonwealth relating to controlled substances discovered by police at her residence shared with Andre and their children. Andre further alleges that defendants Burke and Loconto conspired to deceive Ms. Thurlow and "railroad" Andre's criminal defense. He seeks compensatory and punitive damages as well as declaratory and injunctive relief.
Count VII of the complaint alleges § 1983 violations by John Goggins, Andre's court-appointed counsel in his underlying criminal trial. According to Andre, attorney Goggins rendered misguided and unsolicited legal advice, made administrative errors in his representation, and deterred a witness who would have supported Andre's suppression motion. As a result, Andre alleges that Mr. Goggins joined in the conspiracy to "railroad" his criminal defense. Andre seeks compensatory and punitive damages, as well as declaratory and injunctive relief.
Accompanying his complaint, Andre filed a motion for leave to proceed in forma pauperis (Docket No. 2) and an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Docket No. 3). Thereafter, on January 24, 2011, Andre filed a pleading entitled "Notice" along with various exhibits concerning his incoming and outgoing mail from the WCJHC (Docket No. 5). The Notice concerns Andre's motion in state court to compel or order incoming legal mail logs from the WCJHC. Andre contends he wanted Judge Tucker to witness his impeded access, mail fraud, and the improper policy of the WCJHC. On January 19, 2011, the mail logs from March 1, 2010, to January 19, 2011, were sent to Andre by the Worcester County Sheriff's Department; however, Andre contends that there are mail logs missing from the package provided to him. He contends he needs those logs to prove that the WCJHC is committing a fraud.
Also on January 24, 2011, Andre filed two Affidavits of Danielle Thurlow (Docket Nos. 6 and 7) concerning attorney Burke, and the state court proceedings with respect to forfeiture issues and a plea bargain. On January 28, 2011, Andre filed a certified prison account statement (Docket No. 9).
On February 11, 2011, Andre filed a 64-page "Notice of New Discovery & Criminal Complaint Filed with the U.S. Postal Services" (including attachments) (Docket No. 10). He complains that he lost $4,162 (the seized funds) and complains of mail fraud, as well as Judge Tucker and Judge Lemire's refusal to review his proof contained in his motion for a subpoena duces tecum. He asserts allegations of "nepotism" and improper policies by various persons, departments, attorneys, prosecutors, clerks and judges.
On February 15, 2011, Andre filed a document entitled "Motion: Objection to Ignored Mail Fraud & Impeded Access" (Docket No. 11). This document appears to have been directed to the Worcester Superior Court in connection with Commonwealth v. Andre, Docket No. CR 10-469. Andre seeks relief from the state court with respect to alleged mail fraud. Also on February 15, 2011, Andre filed another document directed to the Worcester Superior Court, entitled "Motion: Objection to Impeded Access." (Docket No. 12).
On February 24, 2011, Andre filed a document entitled "Mail Fraud Ignored & Access to Courts Denied; Relief has been Exhausted in Worcester Superior Ct., & Bad Faith Cont.d" (Docket No. 13). The pleading references three incorporated motions, including a motion against WCJHC for contempt, and motions to compel with respect to defendant McManus and ADA Hodgens. Andre also filed a "Supplemental Attachment to Defendant John Goggins & the Seventh Cause of Action" (Docket No. 14). That pleading addresses a hearing in state court in January 2011, concerning whether Attorney Goggins should serve as stand-by counsel. He complains that his counsel offers no assistance and continues to "railroad" his defense, acting as "a toy soldier for the state in the ongoing conspiracy to obtain a state conviction win . . . ." (Id. at 4).
On February 24, 2011, Andre filed a motion for joinder of new defendant (Docket No. 15), and a supplemental attachment to complaint (Docket No. 16). In the request to amend the complaint to add Beverly Gravison as a defendant, Andre alleges that she was hired to investigate and retrieve documents and information on his behalf. He claims that she failed to do her job as instructed, and charged her for her services. He contends that her malpractice has abridged his rights and undermined his defense, and therefore she has joined in the conspiracy with Attorney Goggins...
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