Perry v. Treseler
| Decision Date | 15 April 2020 |
| Docket Number | Case No. 3:18-cv-30194-KAR |
| Parties | DONALD L. PERRY, Plaintiff, v. PAUL M. TRESELER, Chairman of the Massachusetts Parole Board, & DANIEL BENNETT, Secretary, Executive Office of Public Safety and Security Defendants. |
| Court | U.S. District Court — District of Massachusetts |
MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT
Donald L. Perry ("Plaintiff"), a former state prisoner and parolee who is proceeding pro se, brings this action against Paul M. Treseler ("Defendant"), the Chairman of the Massachusetts Parole Board (Defendant), in his official and individual capacity. In the first amended complaint, Plaintiff alleges that the Massachusetts law that imposes parole supervision fees violates his rights under the Ex Post Facto Clause of the United States Constitution and conflicts with Mass. Gen. Laws ch. 211E, § 3(i). Plaintiff seeks monetary, declaratory, and injunctive relief. Defendant has moved to dismiss under Fed. R. Civ. P. 12(b)(5) for the lack of personal jurisdiction and under rule 12(b)(6) for the failure to state a claim upon which relief can be granted (Dkt. No. 37). The parties have consented to this court's jurisdiction (Dkt. No. 25). See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. For the reasons that follow, Defendant's motion is ALLOWED.
On November 7, 1983, in the Superior Court Department of the Massachusetts Trial Court, Hampden County Division, Plaintiff pled guilty to indictment number 83-4080 charging armed robbery, in violation of Mass. Gen. Laws ch. 265, §17 (Dkt. No. 38-1 at 2). He was sentenced to the Massachusetts Correctional Institution ("MCI") at Walpole for the term of his natural life to be served from and after the state prison sentence he was then serving (Dkt. No. 38-1 at 2). On June 26, 1984, the Appellate Division of the Superior Court amended Plaintiff's life sentence to be served concurrently with the state prison sentence that he was currently serving (Dkt. No. 38-1 at 3).
According to the first amended complaint, Plaintiff was released on parole in 2001 and returned to custody in 2003 (Dkt. No. 36 at 4 ¶ 4). Plaintiff was again released on parole in 2004 (Dkt. No. 36 at 4 ¶ 4). In 2011, Plaintiff was returned to custody after another parole revocation (Dkt. No. 36 at 4 ¶ 4). He was paroled in 2014 (Dkt. No. 36 at 4 ¶ 4). On January 26, 2016 in the Hampden Superior Court, Plaintiff moved to withdraw his guilty plea and for a new trial on indictment number 83-4080 (Dkt. No 38-1 at 5). See Mass. R. Crim. P. 30(b). The motion was allowed by agreement on March 29, 2017 (Dkt. No. 38-1 at 5). On the same date, Plaintiff pledguilty to armed robbery and was sentenced to time-served, nineteen years and one day (Dkt. No. 38-1 at 7). In addition, the previously filed conviction on Hampden County indictment number 83-4079 was revived by agreement, see Commonwealth v. Simmons, 838 N.E.2d 1257, 1261 (Mass. App. Ct. 2005), and, on that conviction, Plaintiff was placed on probation for one year with specific imposed conditions (Dkt. No. 38-1 at 7).
Citing 42 U.S.C. § 1983, the first amended complaint alleges that Defendant violated the Ex Post Facto Clause of the United States Constitution and Massachusetts law by assessing monthly parole supervision fees in the amount of $12,220 during the thirteen years and two months Plaintiff was on parole (Dkt. No. 36 at 1 ¶ 1, at 4 ¶ 5, at 5-6 ¶ 8). Plaintiff further claims that Defendant "coerced and intimidated" his payment of the unauthorized parole supervision fees by threatening to revoke his parole if he failed to pay the fees (Dkt. No. 36 at 4-5 ¶¶ 6, 7). According to Plaintiff, he feared retaliation if he challenged Defendant's action (Dkt. No. 36 at 5 ¶ 7).
Plaintiff seeks monetary relief in the amount of $12,200 plus court costs and interest (Dkt. No. 36 at 6). Plaintiff also seeks to enjoin Defendant from "assessing and collecting monthly parole supervision fees," from parolees who were convicted before July 1, 2003, the effective date of 2003 Mass. Acts ch. 26, § 368 ("Section 368"), which authorized collection of monthly parole supervision fees (Dkt. No. 36 at 10-11 ¶ 9). Similarly, Plaintiff asks the court to declare that Section 368 must be construed with Mass. Gen. Laws ch. 211E, § 3(i) to prohibit the assessment and collection of parole supervision fees from individuals who were convicted and sentenced before July 1, 2003 (Dkt. No. 36 at 6-9 ¶¶ 1-4, 6-8).
Plaintiff filed a complaint on December 17, 2018 (Dkt. No. 1). On February 5, 2019, Plaintiff indicated that the summons and complaint had been served on Defendant by certified mail, return receipt requested on January 29, 2019 (Dkt. Nos. 7, 8). Defendant moved to dismiss the complaint on March 20, 2019 based on the lack of personal jurisdiction, Fed. R. Civ. P. 12(b)(2), insufficient process, Fed. R. Civ. P. 12(b)(4), insufficient service of process, Fed. R. Civ. P. 12(b)(5), and the failure to state a claim, Fed. R. Civ. P. 12(b)(6) () (Dkt. No. 15). In response, Plaintiff moved for an enlargement of time to effect service of process and to respond to Defendant's first motion to dismiss (Dkt. No. 18). On April 1, 2019, Plaintiff filed notice that Defendant and his counsel in the Office of the Attorney General of the Commonwealth were served by certified mail with return receipt (Dkt. No. 19). Plaintiff's motion to extend time to respond to Defendant's first motion to dismiss was allowed on April 3, 2019 (Dkt. No. 20). On April 18, 2019, Defendant again moved to dismiss based on insufficient service and other grounds (second motion to dismiss) (Dkt. No. 24).
After filing an opposition to Defendant's second motion to dismiss on April 22, 2019, Plaintiff moved for leave to file a first amended complaint on May 20, 2019 (Dkt. No. 26, 28). The court granted Defendant's assented-to request for an extension of time to June 19, 2019 to respond to Plaintiff's request to file an amended complaint (Dkt. Nos. 29, 30). On July 5, 2019, in the absence of a timely opposition to Plaintiff's motion to amend, the court allowed Plaintiff's motion to expedite and entered an order granting leave to amend the complaint and denied Defendant's earlier-filed motion to dismiss without prejudice (Dkt. Nos. 31, 32, 33, 34). The first amended complaint was deemed filed on July 5, 2019 (Dkt. No. 36). Defendant moved to dismiss the first amended complaint on July 18, 2019 (third motion to dismiss) (Dkt. No. 37).On August 8, 2019, Plaintiff moved to strike or to oppose Defendant's motion (Dkt. No. 39).2 The court held a hearing on the motions (Dkt. No. 43). Thereafter, both parties filed supplemental briefs (Dkt. Nos. 45, 46).
Defendant moves to dismiss the complaint on the grounds that Plaintiff failed to: (1) effect proper service of the summons and the complaint; (2) state grounds upon which relief can be granted; (3) overcome the fact that Defendant is entitled to immunity for actions that he took in his official capacity; and (4) establish the court's subject matter jurisdiction over the pendant state law claims.
II. ANALYSIS
"Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirements of service of process must be satisfied." Aly v. Mohegan Council-Boy Scouts of Am., Civil Action No. 08-40099-FDS, 2009 WL 3299951, at *1 (D. Mass. Apr. 20, 2009). Where, as here, the sufficiency of process is challenged under Fed. R. Civ. P. 12(b)(5), Plaintiff "bears 'the burden of proving proper service.'" Mukherjee v. Blake, Civil Action No. 12-11381-FDS, 2013 WL 2299521, at *3 (D. Mass. May 24, 2013) (quoting Lopez v. Municipality of Dorado, 979 F.2d 885, 887 (1st Cir. 1992)). Because there is no dispute that Plaintiff sent the summons and complaint to Defendant by certified mail, return receipt requested (Dkt. No. 8, 19), Plaintiff has not met his burden to prove adequate service.
"[S]ervice of process for public employees sued in their [individual] or official capacities is governed by the rule applicable to serving individuals." Caisse v. DuBois, 346 F.3d 213, 216 (1st Cir. 2003) (citing Echevarria-Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 30 (1st Cir.1988)). Cichocki v. Mass. Bay Cmty. Coll., 174 F. Supp. 3d 572, 575-76 (D. Mass. 2016). Plaintiff could have served process by:
Plaintiff did not serve process in compliance with any of the provisions of Fed. R. Civ. P. 4(e)(2)(A), (B), or (C). Nor did he effect service in compliance with state law, which was his other option. See Fed. R. Civ. P. 4(e)(1). "The Massachusetts rules for service are substantially similar to the other three options under the federal rules." Mukherjee, 2013 WL 2299521, at *2.
Service can be made 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...
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