Howell v. Mass. Attorneys Gen.

• Decision Date: 18 July 2022
• Docket Number: Civil Action 21-11979-ADB
• Parties: CURTIS HOWELL, Plaintiff, v. MASSACHUSETTS ATTORNEYS GENERAL, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

CURTIS HOWELL, Plaintiff, v. MASSACHUSETTS ATTORNEYS GENERAL, et al., Defendants.

Civil Action No. 21-11979-ADB

United States District Court, D. Massachusetts

July 18, 2022

MEMORANDUM AND ORDER

ALLISON D. BURROUGHS UNITED STATES DISTRICT JUDGE

Now before the Court is the amended complaint and three motions filed by pro se litigant Curtis Howell. For the reasons set forth below, the Court will deny the motions and order that action be dismissed.

I. Background

Howell commenced this action on December 7, 2021, by filing a complaint, a motion for leave to proceed without prepayment of the filing fee (often referred to as a motion for leave to proceed in forma pauperis) and a motion for appointment of counsel. He has since filed an amended complaint [ECF No. 11], another motion for leave to proceed in forma pauperis, and numerous other motions. In an ordered dated April 6, 2022 [ECF No. 27], the Court granted Howell's in forma pauperis motions and, except for a motion to dismiss filed by the City of Boston [ECF No 17], disposed of all pending motions. In its April 6, 2022 order, the Court prohibited Howell from filing additional motions in this case until the Court had “reviewed the amended complaint and issued an order concerning the issuance of summonses.” [ECF No. 27, ¶ 11].^[1] On April 8, 2022, the Court entered an electronic order denying Howell's motion for default judgment. [ECF No. 29].

Howell has filed notices of appeal of the Court's April 6 and April 8, 2022, orders. [ECF Nos. 39, 40]. The United States Court of Appeals for the First Circuit is addressing both matters in a single appeal. See Howell v. Massachusetts Att'y Gen., Case No. 22-1475 (1st Cir.). On July 11, 2022, the First Circuit issued an order directing Howell to show cause no later than July 25, 2022, as to why his appeal should not be dismissed for lack of jurisdiction. See id. The First stated:

It appears that this Court may lack jurisdiction because the orders are not final judgments or appealable orders, and appellant's claims remain pending in the district court. See 28 U.S.C. §§ 1291, 1292; Ramirez v. Rivera-Dueno, 861 F.2d 328, 333 (1st. Cir. 1988) (stating that, as a general matter, jurisdiction exists under 28 U.S.C. § 1291 where the appealed order terminates the case on the merits and only leaves the court to execute judgment).

Id.

The Court is of the view that it retains jurisdiction over this action notwithstanding Howell's pending appeal. In general, “the filing of a notice of appeal divests the district court of jurisdiction over matters related to the appeal.” Acevedo-Barcia v. Vera-Monroig, 368 F.3d 49, 58 (1st Cir. 2004). However, “the district court can proceed, notwithstanding the filing of an appeal, if the notice of appeal is defective in some substantial and easily discernible way (if, for example, it is based on an unappealable order).” Rivera-Torres v. Ortiz Velez, 341 F.3d 86, 96 (1st Cir. 2003) (quoting United States v. Brooks, 145 F.3d 446, 456 (1st Cir. 1998)). In this case, Howell's notices of appeal are almost certainly based on unappealable orders and are therefore patently defective. Neither the April 6, 2022, nor the April 8, 2022, order was a final judgment, see 28 U.S.C. § 1291 (“The courts of appeals . . . shall have jurisdiction of appeals from all final decision of the district courts of the United States.”^[1]), and neither order was otherwise immediately appealable.^[2],[3]

II. Pending Motions

Pending before the Court are Howell's “Motion to objection to ruling, (motion to correct clerical errors” [ECF No. 32], “Motion For Relief Of Judgement” [ECF No. 33], and “Motion to Object/Motion for Default” [ECF No. 34]. The Court DENIES all three motions.

These motions are premised on Howell's misunderstanding regarding the meaning of “in forma pauperis,” and the way in which a case proceeds where a plaintiff is proceeding without the prepayment of the filing fee.

In several of Howell's submissions, he has objected to the Court's use of the term “in forma pauperis” to his actions. Howell apparently thinks that the phrase applies only to prisoner cases. This is incorrect. Federal courts routinely apply the descriptor “in forma pauperis” to all litigants (prisoner or non-prisoner) who are proceeding without prepayment of the filing fee. For non-prisoner plaintiffs who are allowed to proceed in forma pauperis (i.e., without prepayment of the filing fee), the $350 statutory and $52 administrative filing fees, see 28 U.S.C. §§ 1914(a), (b) are waived. In contrast, plaintiff prisoners who are allowed to proceed in forma pauperis (i.e., without prepayment of the filing fee), must pay the $350 statutory filing fee over time. See 28 U.S.C. § 1915(b).^[4]

Where a plaintiff does not pay the filing fee at the commencement of the action, summonses do not issue until the filing fee is resolved. Where a litigant is permitted to proceed without prepayment of the filing fee, summonses do not issue until the Court conducts a preliminary review to determine whether the defendants should be required to respond to the complaint. See 28 U.S.C. § 1915(e)(2). If the Court finds that the complaint merits a response from the defendants, the Court orders that summonses issue. Unless and until summonses issue, a defendant does not have any obligation to waive service of summonses or to respond to the complaint. The service period proscribed by Fed.R.Civ.P. 4(m) is tolled until the Court screens a plaintiff's in forma pauperis complaint and authorizes service of process. See Scott v. Maryland State Dep't of Labor, 673 Fed. App'x 299, 304 (4th Cir. 2016) (per curiam). Further, even when summonses have issued, entry of default is not appropriate unless (1) a defendant was properly served with a summons or a defendant has waived service of the summons; and (2) the defendant has failed to respond to the complaint in the response period prescribed by the summons or the waiver.

III. Review of the Amended Complaint

Because the Court has granted Howell's motions for leave to proceed without prepayment of the filing fee (i.e., his motions for leave to proceed in forma pauperis), his amended complaint is subject to review by the Court prior to any issuance of summonses. The Court has statutory authority to dismiss the complaint (or amended complaint) of any litigant proceeding in forma pauperis if the pleading is malicious, frivolous, fails to state a claim upon 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). In conducting this review, the Court liberally construes Howell's amended complaint because he is proceeding pro se. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

The overall themes in Howell's amended complaint are that the defendants thwarted his efforts to earn money from songs that he composed, that he was subject to illegal surveillance and hacking of electronic devices, that government agencies failed to investigate his complaints of wrongdoing, and that he did not receive adequate assistance to establish a business or find adequate housing. He seeks a total of $10,000,000 in damages. Upon review of the pleading, the Court concludes that the amended complaint fails to state a claim upon which relief can be granted and that it is without jurisdiction to adjudicate some claims.

A. Federal Agencies

Howell names three federal agencies as defendants: the United States Department of Justice (“DOJ”), the Internal Revenue Service (“IRS”), and the United States Postal Service (“USPS”).

Howell's theory of liability for the DOJ and IRS is as follows:

The department of justice and IRS, failed to provide my request for my work history on numerous occasions so that I may investigate into the matter of my childhood employment as a rapper of the city of Boston performing at the strand theater, performing at city hall and performing at the Hyde park municipal building. Not providing me my work experience denied me information pertaining to who were affiliated with individuals in the music industry who sponsored the shows leading to targeting me from 1993-1994 where there was a continuous theft of my intellectual properties. In 1993 I did shows with Public enemy and 19941 did shows with REDMAN and the illegal implantation of device left me to be targeted amongst the music industry from that period. As well as denied me the request for record of my addresses, schools and medical insurance records from Maine to Florida, so that I may know who I was targeted from in the music industry that may have taken some of my intellectual trial properties from 1993-2022.

Am. Compl. ¶ 33 (as in original).

Regarding the United States Postal Service, Howell alleges that the agency “obstructed [his] mailing parcel and regular mail and denied [him] [his] rights to postage stamp date which [he] had to re-mail in order to secure [his] copyrights which denied [him] of due process of the 1st amendment and 14 amendments of the United States Constitution.” Id. ¶ 31.

Howell invokes 42 U.S.C. §§ 1981, 1982, 1983, 1985, 2000a-6, 2000d-1 and the First and Fourteenth Amendments as the basis of the federal defendants' liability for their alleged misconduct.

The doctrine of sovereign immunity precludes Howell from pursing his claims against the DOJ, IRS, and USPS in this Court. The United States (including its various branches, departments and agencies) enjoys immunity from suit-regardless of the nature of a claim- except in those instances in which it has expressly consented to be sued. See FDIC v. Meyer, 510 U.S. 471, 475 (1994). A waiver of sovereign immunity must be expressly and unequivocally found in the statutory text and cannot be implied. See Lane v. Pena, ...