Lu v. Niles
| Decision Date | 17 July 2017 |
| Docket Number | Civil Action No. 16-12220-FDS |
| Parties | FRIEDRICH LU, Plaintiff, v. IESHA NILES, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTIONS TO AMEND THE COMPLAINT AND DEFENDANT'S MOTIONS FOR JUDGMENT ON THE PLEADINGS AND FOR INJUNCTIVE RELIEF
This is a civil rights action. Plaintiff Friedrich Lu brought this action against defendant Iesha Niles, an employee at a homeless shelter where Lu was staying. The complaint alleges a claim under 42 U.S.C. § 1983 for violations of Lu's rights under the Fourth and Fourteenth Amendments.
Pending before the Court are four motions: Niles has moved both for judgment on the pleadings and for injunctive relief enjoining Lu from commencing other lawsuits against the Boston Public Health Commission and its employees, as well as other state and local government agencies and their employees, unless specifically authorized in advance. Lu has filed two motions to amend the complaint.
For the following reasons, the motion for judgment on the pleadings will be granted. All other motions will be denied.
Unless otherwise noted, the facts are set forth as alleged in the complaint.
Plaintiff Friedrich Lu is homeless. On November 1, 2016, he was staying at a city-run homeless shelter located at 112 Southampton Street in Boston, Massachusetts. Defendant Iesha Niles is a "fill-in staffer" at the shelter and was on duty during Lu's November 1 stay. (Answer at 2). She is employed by the Boston Public Health Commission ("BPHC"). (Id. at 1).
While at the shelter, Lu asked a third party, named in the complaint as "D," to hold some of his belongings. Another person, "Z," stole Lu's property while it was in D's custody. Apparently after Lu demanded its return, Niles, D, and another person "asserted" that the property belonged to Z. At some point, Z returned the property, but allegedly kept a ten-dollar bill that belonged to Lu.
Niles asked Lu to leave the shelter. He appealed that request to the evening supervisor on duty at the shelter, but that person also required Lu to leave.
The following day, on November 2, 2016, Lu filed the complaint in this action. He is proceeding pro se.
Lu is an experienced litigant. A non-exhaustive search of filings in the United States District Court for the District of Massachusetts reveals that Lu has brought no fewer than twenty cases against various public and private parties over a period of more than twenty years.1Relevant to this action, on July 25, 2000, Lu filed a complaint against the Harvard School of Dental Medicine and others alleging claims under the False Claims Act, 31 U.S.C. §§ 3729-3733. None of the allegations or claims pleaded in that action are repeated here. On March 29, 2002, the court issued a memorandum and order dismissing the case with prejudice and issuing an injunction prohibiting Lu from filing future claims that arise from or relate to the claims made in that case, and further requiring Lu to "attach to any pleading, motion, complaint, or other document that he files in the United States District Court for the District of Massachusetts: (1) a copy of this Order, and (2) a certification, signed under the pains and penalties of perjury, that he has complied in good faith with this Order" ("March 2002 Order"). Lu v. Harvard University et al., Memorandum and Order, 00-cv-11492-MLW (Mar. 29, 2002) (Wolf, J.).
In violation of that order, Lu did not file a certification or a copy of the March 2002 Order when he filed this action on November 2, 2016.
On May 26, 2017, Niles filed a motion for judgment on the pleadings and a motion for injunctive relief, seeking a permanent injunction enjoining Lu from commencing other lawsuits against the BPHC and its employees, as well as other state and local government agencies and their employees, unless specifically authorized by this Court in advance.
Lu has not filed any response to those motions. Instead, he has filed two motions to amend the complaint.
First, defendant moves for judgment on the pleadings. She contends that the complaint fails to state a claim upon which relief can be granted.
A. Standard of Review
motion to dismiss." Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008). It differs from a Rule 12(b)(6) motion primarily because it is filed after the close of pleadings and "implicates the pleadings as a whole." Aponte-Torres v. University of P.R., 445 F.3d 50, 55 (1st Cir. 2006). To survive a motion for judgment on the pleadings, a complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 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). Because a Rule 12(c) motion "calls for an assessment of the merits of the case at an embryonic stage, the court must view the facts contained in the pleadings in the light most favorable to the nonmovant and draw all reasonable inferences therefrom to the nonmovant's [benefit]." R.G. Fin. Corp. v. Vergara-Nunez, 446 F.3d 178, 182 (1st Cir. 2006). There is no resolution of contested facts in connection with a Rule 12(c) motion; a court may enter judgment on the pleadings only if the properly considered facts conclusively establish the movant's position. Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988).
As an initial matter, under Fed. R. Civ. P. 41(b), "[i]f the plaintiff fails . . . to comply with . . . a court order, a defendant may move to dismiss [an] action or any claim against it." Lu violated the March 2002 Order by failing to attach a copy of that order and a certification stating that he has complied with it when he filed the complaint in this action. This is not Lu's first violation of the March 2002 Order. He has been warned on multiple occasions that continued failure to comply with the March 2002 Order could result in sanctions. In 2015 in Lu v. Menino, the court found that Lu had failed to comply with the March 2002 Order in that case and earliercases. 98 F. Supp. 3d 85, 107 (2015) (Sorokin, J.) (). In one case, Lu was fined $500 for failing to comply. Id. In Lu v. Menino, the court declined to impose monetary sanctions but warned that "[i]n the event plaintiff continues to violate the March 2002 Order by filing a complaint in this district without attaching the March 2002 Order and without complying with the certification requirement, he is advised that such conduct may result in a sanction, including a monetary sanction or a stricter bar to filing cases in this district." Id. at 109. In light of Lu's continued recalcitrance in the face of multiple warnings, defendant would have a strong argument that the "harsh sanction" of dismissal under Rule 41(b) should be imposed in this case. Malot v. Dorado Beach Cottages Assocs., 478 F.3d 40, 44 (1st Cir. 2007).
However, defendant has not moved to dismiss the action under Fed. R. Civ. P. 41(b).2 Instead, she contends that the complaint fails to allege a plausible claim upon which relief can be granted. Taking defendant's lead, the court turns to the complaint.
To succeed on a claim under 42 U.S.C. § 1983, a plaintiff must prove that (1) the conduct complained of was carried out under color of state law and (2) defendant's actions deprived plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. See Collins v. Nuzzo, 244 F.3d 246, 250 (1st. Cir. 2001).
The complaint does not identify defendant's relationship to the homeless shelter. It merely states that she was present at the time of the incident. However, the answer makes clear that defendant is a BPHC employee and was acting in her capacity as such at the time of the incident. Accordingly, the pleadings, taken as a whole, plausibly allege that defendant wasacting under color of state law at the time of the incident.
However, the complaint fails to allege a plausible claim that defendant violated Lu's constitutional rights. It alleges that a third party, not defendant, stole property from Lu. Therefore, the complaint does not allege that defendant, as opposed to some other party, deprived Lu of property without due process.
Insofar as the complaint alleges that defendant should be liable for failing to protect Lu from having his property stolen, it fails to state a claim upon which relief can be granted. Subject to exceptions not relevant here, the government generally does not have a duty to protect citizens from harms inflicted by private individuals. See DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 195 (1989) (). Defendant is a public health commission employee. Even liberally construed, the complaint alleges that she was no more than a bystander at the time that Lu's property was stolen. The Constitution did not impose a duty on her to ensure that his property was safe from theft. Therefore the complaint fails to state a claim that defendant violated Lu's constitutional rights. Accordingly, the motion for judgment on the pleadings will be granted.
II. Defendant's Motion for Injunctive Relief
Next, defendant has filed a motion for "a permanent injunction enjoining Plaintiff from commencing other lawsuits against the [BPHC] and its employees, other state and local government agencies and their employees, unless specifically authorized by this Court in advance."
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