# Dubose v. Commonwealth of Massachusetts

> District Court, D. Massachusetts · April 2, 2021

URL: https://www.frixlaw.com/law-library/cases/10199377

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** April 2, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10199377

## How later opinions describe it (automated extraction)

- describing scenarios “in which a private person’s conduct may be fairly attributed to the state”
- finding that § 178 of the CORI Act is a criminal statute that does not provide a private right of action
- holding that Congress did not override state sovereign immunity in connection with § 1983

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

*
ERNEST J. DUBOSE a/k/a DAYO DUBOSE,
*

*
Plaintiff,
*

*
v.
*

* Civil Action No. 20-cv-11084-ADB
COMMONWEALTH OF
*
MASSACHUSETTS, AKINBAMI
*
OJUGBELE, ABIODUN OJUGBELE,
*
MORAYO OJUGBELE, and KEVIN
*
DEVLIN,
*

*
Defendants.
*

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTIONS TO DISMISS

BURROUGHS, D.J.

Plaintiff Ernest J. Dubose, who is proceeding pro se, brings this action against the
Commonwealth of Massachusetts (the “Commonwealth”), Kevin Devlin, Akinbami Ojugbele
(“Ak. Ojugbele”), Abiodun Ojugbele (“Ab. Ojugbele”), and Morayo Ojugbele (“M. Ojugbele,”
together with Ak. Ojugbele and Ab. Ojugbele, the “Ojugbeles,” and, the Ojugbeles, together with
the Commonwealth and Devlin, “Defendants”), alleging that Defendants conspired to deprive
him of various civil rights. [ECF No. 17 (“Am. Compl.”)]. Currently before the Court are
Defendants’ motions to dismiss. [ECF No. 18 (the Commonwealth and Devlin); ECF No. 20
(the Ojugbeles)]. For the reasons set forth below, Defendants’ motions are GRANTED.
I. BACKGROUND
A. Factual Background
For purposes of the instant motion to dismiss, the Court, as it must, “accept[s] as true all
well-pleaded facts alleged in the complaint and draw[s] all reasonable inferences therefrom in

the pleader’s favor.” A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013).
On May 22, 2015, Dubose was sentenced to six years’ incarceration for various
fraud-related offenses in New Jersey. [Am. Compl. ¶ 24]. On August 11, 2016, he was paroled
and permitted to live with M. Ojugbele, his girlfriend, in New Jersey. [Id. ¶ 25]. In April 2017,
Dubose requested that he be allowed to move to Massachusetts, where he intended to live with
M. Ojugbele at his mother’s home, and the New Jersey parole office approved his request. [Id.
¶ 26]. On June 1, 2017, Dubose reported to the parole office in Massachusetts and met Devlin,
his new parole officer. [Id. ¶ 27]. In August 2018, Dubose told Devlin that he and M. Ojugbele
had recently had a child together but were going to separate. [Id. ¶ 28].
On October 10, 2018, M. Ojugbele obtained a temporary restraining order (“TRO”)

against Dubose. [Am. Compl. ¶ 29]. The TRO, in turn, triggered the issuance of a violation
report, which was sent to the New Jersey parole office in November 2018. [Id.]. In addition to
noting the existence of the TRO, the report listed multiple other parole violations, including
traveling (out of state and out of the country) without permission and maintaining a second
address without properly notifying his parole officer. [Id. ¶ 30]. On November 16, 2018, based
on the violation report, an arrest warrant was issued, Dubose’s parole was temporarily revoked,
and he was taken into custody. [Id. ¶ 31]. Later that month, after a hearing, the TRO was
dissolved because there was insufficient evidence. [Id. ¶ 32].
In January 2019, Dubose, who was represented by counsel, participated remotely in a
parole revocation hearing before the New Jersey parole board. [Am. Compl. ¶ 33]. At the
hearing, a senior parole officer testified and various documents were introduced into evidence.
[Id. ¶¶ 34–42]. According to Dubose, the testimony and documents demonstrated that:

(1) although he did leave the state and country without permission, those violations were not
serious and would not have necessitated revocation of his parole, [id. ¶ 42]; (2) he should not
have been arrested based on the issuance of a TRO and Devlin “jumped the gun” by doing so,
[id. ¶ 37]; and (3) M. Ojugbele was dishonest and sought a TRO to gain leverage in a custody
dispute, [id. ¶ 39].1
In sum, Dubose’s core allegation is that Devlin and the Ojugbeles conspired to have him
arrested on a trumped-up parole violation—because of a TRO issued based on flimsy or
fabricated allegations—to prejudice him in his ongoing child custody battle.2
B. Procedural Background
Dubose filed his original complaint on June 8, 2020. [ECF No. 1]. In July 2020,

Defendants moved to dismiss. [ECF No. 5 (the Ojugbeles); ECF No. 8 (the Commonwealth and
Devlin)]. On September 4, 2020, the Court ordered Dubose, who had not yet opposed
Defendants’ motions, to show cause as to why his complaint should not be dismissed. [ECF No.
10]. Because Dubose did not show cause by the Court’s deadline, the Court dismissed his
complaint and closed the case. [ECF Nos. 11, 12]. On October 14, 2020, Dubose moved for
relief from judgment, citing delays in his receipt of court filings and the COVID-19 pandemic.

1 As far as the Court can tell, M. Ojugbele did not participate in the hearing.
2 Although he does not specify when, Dubose also alleges that, on multiple occasions, the
Ojugbeles threatened him with the prospect of prison time and/or contacting Devlin. [Am.
Compl. ¶¶ 43–44].
[ECF Nos. 13, 14]. The Court granted his motion and allowed him to file an amended
complaint. [ECF No. 15].
On November 16, 2020, Dubose filed his amended complaint. [Am. Compl.]. He brings
a claim under 42 U.S.C. § 1983 (Count I), a claim under Massachusetts General Laws Chapter

265, § 37 (Count II), and a claim under the Massachusetts Criminal Offender Records
Information Act (the “CORI Act”) (Count III), [id. ¶¶ 49–58], and seeks damages
(compensatory, nominal, and punitive) as well as attorneys’ fees and costs, [id. at 16].
Defendants moved to dismiss, [ECF No. 18 (the Commonwealth and Devlin); ECF No. 20 (the
Ojugbeles)], and Dubose opposed, [ECF No. 22].
II. LEGAL STANDARD
In reviewing a motion to dismiss under Rule 12(b)(6), the Court must accept as true all
well-pleaded facts, analyze those facts in the light most favorable to the plaintiff, and draw all
reasonable factual inferences in favor of the plaintiff. See Gilbert v. City of Chicopee, 915 F.3d
74, 76, 80 (1st Cir. 2019). “[D]etailed factual allegations” are not required, but the complaint

must set forth “more than labels and conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). The alleged facts must be sufficient to “state a claim to relief that is plausible on its
face.” Id. at 570.
“To cross the plausibility threshold a claim does not need to be probable, but it must give
rise to more than a mere possibility of liability.” Grajales v. P.R. Ports Auth., 682 F.3d 40,
44–45 (1st Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A determination of
plausibility is ‘a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.’” Id. at 44 (quoting Iqbal, 556 U.S. at 679). “[T]he complaint
should be read as a whole, not parsed piece by piece to determine whether each allegation, in
isolation, is plausible.” Hernandez-Cuevas v. Taylor, 723 F.3d 91, 103 (1st Cir. 2013) (quoting
Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 14 (1st Cir. 2011)). “The plausibility standard
invites a two-step pavane.” Elsevier, 732 F.3d at 80 (citing Grajales, 682 F.3d at 45). First, the
Court “must separate the complaint’s factual allegations (which must be accepted as true) from

its conclusory legal allegations (which need not be credited).” Id. (quoting Morales-Cruz v.
Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). Second, the Court “must determine whether
the remaining factual content allows a ‘reasonable inference that the defendant is liable for the
misconduct alleged.’” Id. (quoting Morales-Cruz, 676 F.3d at 224).
“A document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
III. DISCUSSION
A. Count I: Section 1983

1. The Commonwealth
The Commonwealth argues that it is immune from a § 1983 suit under the state sovereign
immunity doctrine. [ECF No. 19 at 7]. Dubose appears to concede that his § 1983 claim against
the Commonwealth is improper. See [ECF No. 22 at 9–10 (not engaging with the
Commonwealth’s state sovereign immunity argument)].
The Supreme Court has held that “absent waiver by the State or valid congressional
override, the Eleventh Amendment bars a damages action against a State in federal court.”
Kentucky v. Graham, 473 U.S. 159, 169 (1985). The Commonwealth has not waived its
immunity here, and § 1983 does not abrogate its sovereign immunity. Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 71 (1989) (holding that Congress did not override state sovereign
immunity in connection with § 1983); Santiago v. Keyes, 839 F. Supp. 2d 421, 427 (D. Mass.
2012) (“The Supreme Court has made it clear that section 1983 does not abrogate a state’s
Eleventh Amendment immunity.”). Accordingly, Count I as asserted against the Commonwealth

must be dismissed.
2. Devlin
Devlin argues that he too cannot be sued in federal court because of state sovereign
immunity. [ECF No. 19 at 7–9]. Dubose maintains that Devlin can, in fact, be sued. [ECF No.
22 at 9–10].
Devlin’s potential immunity depends, in part, on whether Dubose is bringing his claim
against Devlin in his personal or official capacity. With respect to § 1983, the Supreme Court
has described the distinction as follows:
Personal-capacity suits seek to impose personal liability upon a government official
for actions he takes under color of state law. Official-capacity suits, in contrast,
generally represent only another way of pleading an action against an entity of
which an officer is an agent. As long as the government entity receives notice and
an opportunity to respond, an official-capacity suit is, in all respects other than
name, to be treated as a suit against the entity. It is not a suit against the official
personally, for the real party in interest is the entity. Thus, while an award of
damages against an official in his personal capacity can be executed only against
the official’s personal assets, a plaintiff seeking to recover on a damages judgment
in an official-capacity suit must look to the government entity itself.
Graham, 473 U.S. at 165–66 (citations and internal quotation marks omitted). Here, although
Dubose repeatedly alleges that Devlin was acting in his “official capacity” when he allegedly
wronged Dubose, [Am. Compl. ¶¶ 3, 14, 48, 50], his substantive assertion is that Devlin,
personally, conspired with the Ojugbeles against Dubose, see [id. ¶ 3]. Put slightly differently,
Dubose’s quarrel is with Devlin himself, not with the Massachusetts parole office or any other
governmental entity. Giving Dubose the benefit of the doubt, Erickson, 551 U.S. at 94, the Court
finds that he is asserting a claim against Devlin in his personal capacity.3
As is well established, § 1983 creates no independent substantive rights, but rather
provides a cause of action by which individuals may seek money damages for
governmental violations of rights protected by federal law. Hence the requirement
that, to state a claim under § 1983, a plaintiff must allege (1) the violation of a right
protected by the Constitution or laws of the United States and (2) that the
perpetrator of the violation was acting under color of law.
Cruz-Erazo v. Rivera-Montanez, 212 F.3d 617, 621 (1st Cir. 2000) (citation omitted). The first
element requires the plaintiff to show that the defendant caused the alleged violation. Gagliardi
v. Sullivan, 513 F.3d 301, 306 (1st Cir. 2008).
Dubose has adequately alleged that Devlin was acting under color of law. See [Am.
Compl. ¶¶ 3, 14, 48]. Accordingly, the validity of his § 1983 claim against Devlin depends on
whether he has adequately pleaded that Devlin caused the violation of a federally-guaranteed
right. In his amended complaint, Dubose asserts that a number of his rights were violated,
including his right to freedom, his right to pursue custody of his child, his right to privacy, [id.
¶ 3], his right to liberty, and his right to due process, [id. ¶ 51]. His factual allegations, however,
do not plausibly suggest a violation of any cognizable federal right.

3 Devlin argues that, even in his personal capacity, he is absolutely immune from § 1983 liability
because he was a parole officer carrying out a quasi-judicial function. [ECF No. 19 at 11].
Devlin is correct that “[p]arole officers performing functions related to helping the
‘quasi-judicial body [of the Parole Board] to render a decision’ are also absolutely immune from
damages claims.” Phillips v. Conrad, No. 10-cv-40085, 2011 WL 309677, at *7 (D. Mass. Jan.
28, 2011) (second alteration in original) (quoting Namey v. Reilly, 926 F. Supp. 5, 9–10 (D.
Mass. 1996)). That principle, however, is inapplicable here because Dubose does not seem to be
alleging that Devlin violated his rights merely by preparing materials upon which the parole
board relied. Contra id. (“Thus, when parole officers prepare materials upon which the parole
board will rely when making decisions to grant, deny, or revoke parole, they are protected by
absolute immunity from damages liability.”). Rather, Dubose alleges, among other things, that
Devlin shared sensitive information with the Ojugbeles, [Am. Compl. ¶ 3], and encouraged
M. Ojugbele to seek a restraining order, [id. ¶¶ 6, 15].
Disregarding legal conclusions, as the Court must when assessing a motion to dismiss,
Elsevier, 732 F.3d at 80, Dubose alleges that Devlin did the following: (1) shared with the
Ojugbeles “personal and confidential information” about Dubose, [Am. Compl. ¶ 3];
(2) informed the Ojugbeles as to what could result in the revocation of Dubose’s parole, [id.

¶¶ 15, 44]; and (3) based on the TRO, issued a violation report and sent it to the New Jersey
parole office, which resulted in the temporary revocation of Dubose’s parole and his arrest, [id.
¶¶ 29–30]. Even assuming that all this is true, however, Dubose has not plausibly alleged that
Devlin violated a federally-protected right.
In Morrissey v. Brewer, the Supreme Court discussed the interplay of the due process
clause of the Fourteenth Amendment and the revocation of state parole. 408 U.S. 471 (1972).
First, it concluded that “[r]evocation [of parole] deprives an individual, not of the absolute liberty
to which every citizen is entitled, but only of the conditional liberty properly dependent on
observance of special parole restrictions.” Id. at 480. Next, it concluded that the liberty of a
parolee is important enough to warrant protection under the Fourteenth Amendment. Id. at 482.

Finally, it turned to the minimum procedural protections that a state parole revocation proceeding
must include to comport with due process. According to the Supreme Court, there are “two
important stages in the typical process of parole revocation.” Id. at 485.
The first stage concerns the preliminary hearing that follows the arrest and detention of
the parolee. Morrisey, 408 U.S. at 485. For that stage, the court articulated the following
procedural safeguards: (1) “the determination that reasonable ground exists for revocation of
parole should be made by someone not directly involved in the case,”; (2) “[w]ith respect to the
preliminary hearing before this officer, the parolee should be given notice that the hearing will
take place and that its purpose is to determine whether there is probable cause to believe he has
committed a parole violation”; (3) “[a]t the hearing the parolee may appear and speak in his own
behalf; he may bring letters, documents, or individuals who can give relevant information to the
hearing officer”; (4) “[t]he hearing officer shall have the duty of making a summary, or digest, of
what occurs at the hearing in terms of the responses of the parolee and the substance of the

documents or evidence given in support of parole revocation and of the parolee’s position”; and
(5) “[b]ased on the information before him, the officer should determine whether there is
probable cause to hold the parolee for the final decision of the parole board on revocation.” Id.
at 485–87.
As to the second stage, the final revocation hearing, the court found that the minimum
procedural requirements included:
(a) written notice of the claimed violations of parole; (b) disclosure to the parolee
of evidence against him; (c) opportunity to be heard in person and to present
witnesses and documentary evidence; (d) the right to confront and cross-examine
adverse witnesses (unless the hearing officer specifically finds good cause for not
allowing confrontation); (e) a “neutral and detached” hearing body such as a
traditional parole board, members of which need not be judicial officers or lawyers;
and (f) a written statement by the factfinders as to the evidence relied on and reasons
for revoking parole.
Morrisey, 408 U.S. at 489.
Dubose does not make clear whether the January 2019 hearing was his preliminary or
final hearing, but, in any event, Dubose does not allege that he was deprived of any of the
procedural safeguards for either stage described in Morrissey.4 To the contrary, he specifically

4 To the extent Dubose’s complaint can be construed as alleging that Devlin’s action constituted
a violation of substantive due process, that claim fails. “To constitute a violation of substantive
due process, state action must be ‘so egregious, so outrageous, that it may fairly be said to shock
the contemporary conscience.’” Pimental v. City of Methuen, 323 F. Supp. 3d 255, 268 (D.
Mass. 2018) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)). Here,
even if Devlin’s factual allegations regarding Devlin’s conduct are true—i.e., that Devlin told the
Ojugbeles about Dubose’s parole conditions (including what violations could result in
alleges that he attended his hearing, [Am. Compl. ¶ 33], the hearing officer was someone other
than Devlin, [id. ¶ 33], Dubose was made aware of the alleged violations (and in fact admitted to
some of them), [id. ¶ 34], and Dubose’s attorney cross-examined witnesses and introduced
evidence, [id. ¶¶ 36, 40]. Additionally, there was obviously a written statement issued by the

parole officer presiding over the hearing because Dubose cites to it extensively. See, e.g., [id.
¶ 42]. Further, it is worth noting that Dubose’s parole does not seem to have ultimately been
revoked. [Id. ¶ 42 (“The violations are not serious or persistent, and revocation is not
desirable.”)]. Finally, even if Dubose were deprived of these procedural protections, he does not
allege facts suggesting that Devlin, as opposed to the New Jersey parole board or some officer or
agent thereof, caused that deprivation. Thus, based on the allegations in the amended complaint,
Dubose has not plausibly alleged that Devlin violated his due process rights in connection with
the temporary revocation of his parole.5
As to Dubose’s allegations that his right to pursue custody of his child and his right to
privacy were violated, those allegations are insufficient to state a § 1983 claim. First, Dubose

has not identified a federally protected, unconditional right to seek custody of one’s child, and
the Court is aware of no such right. More importantly, even if such a right exists, Dubose does
not actually allege that he was prevented from seeking custody. Rather, he alleges that because
he was arrested, he “had no chance of winning a custody suit.” [Am. Compl. ¶ 46]. Taking
action that hinders a parent in a subsequent child custody battle is not, itself, a constitutional

revocation) and issued a violation report after the TRO was obtained—Devlin’s conduct does not
rise to the level of shocking the conscience.
5 The fact that Dubose arguably should not have been arrested for his parole violations under
New Jersey state law, see [Am. Compl. ¶¶ 37, 41], does not mean that a federally-guaranteed
right was violated.
violation. Whether Dubose was afforded a fair opportunity to explain the TRO and temporary
revocation of his parole in family court when pursuing custody is beyond the Court’s purview.
Second, with respect to privacy, Dubose seems to premise his claim on Devlin’s
disclosure of his “personal and confidential information” to the Ojugbeles. [Id. ¶ 3]. Although

Dubose does not make any factual allegations regarding what precisely was allegedly disclosed,
the Court can infer that Devlin shared with the Ojugbeles the conditions of Dubose’s parole. See
[id. ¶ 44]. Dubose has pointed to no constitutional or actionable federal principle that would
prevent a parole officer from sharing parole conditions with the parolee’s girlfriend or her
parents. Cf. Dasey v. Anderson, 304 F.3d 148, 155 (1st Cir. 2002) (“However, we are aware of
no constitutional principle that would bar defendants from, as Dasey puts it, ‘using information
concerning [his] private life as the basis for terminating [his] employment.’”) (alterations in
original). In fact, New Jersey’s general parole conditions are codified in publicly-available
regulations, see N.J. Admin. Code § 10A:71–6.4 (“An offender granted parole shall comply with
the following general conditions of parole: . . .”), which undercuts the notion that Dubose’s

parole conditions were even confidential.
Thus, because he has not adequately pleaded that Devlin violated a federally-protected
right, Dubose’s § 1983 claim against Devlin fails, and Count I of the amended complaint as
asserted against Devlin must be dismissed.6

6 Devlin makes additional arguments as to why the complaint should be dismissed, including the
fact that Dubose did not properly serve him. [ECF No. 19 at 11–15]. Because the Court finds
that Dubose has failed to state a § 1983 claim, and dismisses his state law claims, see infra,
Section III.B, it does not reach these arguments.
3. The Ojugbeles7
Although there are certain circumstances in which a private person may be deemed a
state actor for purposes of § 1983, Meuse v. Stults, 421 F. Supp. 2d 358, 362 (D. Mass. 2006)
(describing scenarios “in which a private person’s conduct may be fairly attributed to the state”),

the Court need not consider them here because Dubose has not plausibly alleged that the
Ojugbeles violated any right guaranteed by the Constitution or federal law, see Cruz-Erazo v.
Rivera-Montanez, 212 F.3d at 621 (noting that violation of a federally-guaranteed right is
essential to § 1983 claim). With respect to the Ojugbeles, Dubose alleges the following:
(1) M. Ojugbele obtained a TRO against him, based on fabricated allegations, shortly after he
told her that he was going to sue her for custody [Am. Compl. ¶¶ 29, 38–40, 47]; (2) the TRO
was subsequently terminated for lack of evidence, [id. ¶ 32]; (3) the Ojugbeles “threatened
[Dubose] with prison if he did not terminate his custody suit against [M. Ojugbele],” [id. ¶¶ 43,
44]; and (4) M. Ojugbele “persistently threatened to contact [Devlin] if [Dubose] did not comply
with her requests,” [id. ¶ 43]. Even if all these allegations are true, they do not plausibly suggest

that the Ojugbeles violated one of Dubose’s federally-protected rights.
Dubose has not identified any constitutional principle, or federal law, that gives him a
right not to be threatened by his girlfriend (and her parents) or a right not to have a TRO issued
based on false or exaggerated allegations. If his allegations are true, Dubose may well have legal
recourse against the Ojugbeles under state law, but not under § 1983. Because he has not

7 It is not entirely clear whether Dubose asserts a § 1983 claim against the Ojugbeles. Although
he refers generally to “Defendants” in one relevant paragraph of the amended complaint, [Am.
Compl. ¶ 51], he specifically identifies only Devlin in another, [id. ¶ 50]. Because Dubose is
proceeding pro se, the Court will give him the benefit of the doubt and assume that he is
asserting § 1983 claims against both Devlin and the Ojugbeles. See Erickson, 551 U.S. at 94.
adequately alleged that they violated any federally protected right, Count I as asserted against the
Ojugbeles must be dismissed.8
B. The Court Declines to Exercise Supplemental Jurisdiction Over Dubose’s
Remaining State Law Claims
Dubose asserts that the Court has subject matter jurisdiction because of the federal
questions presented by his § 1983 claim. [Am. Compl. ¶ 18]. Although he makes some
allegations regarding the parties’ respective citizenships, those allegations are not sufficient to
plausibly suggest that there is diversity jurisdiction. [Id. ¶ 22 (alleging that M. Ojugbele is a
Massachusetts resident and her parents are New Jersey residents but failing to make allegations
regarding his or Devlin’s citizenship)].9 Nor does he otherwise argue that diversity jurisdiction
exists.10 See [Am. Compl.; ECF No. 22]. Although his burden at the pleading stage is not

particularly heavy, see Fed. R. Civ. P. 8(a)(1) (“A pleading that states a claim for relief must
contain: [] a short and plain statement of the grounds for the court’s jurisdiction”), Dubose has
not met that burden with respect to diversity jurisdiction.

8 The Ojugbeles makes additional arguments in favor of dismissal, including lack of personal
jurisdiction. [ECF No. 21 at 2]. Because the Court finds that Dubose has failed to state a § 1983
claim, and dismisses his state law claims, see infra, Section III.B, it need not reach these
arguments.
9 He does allege that “all Parties to this action with the exception of the Commonwealth formerly
resided in Massachsuetts,” [Am. Compl. ¶ 19 (emphasis added)], but subject matter jurisdiction
is assessed as of the time the complaint was filed, Grupo Dataflux v. Atlas Glob. Grp., L.P., 541
U.S. 567, 570 (2004).
10 In fact, on the whole, Dubose’s allegations (and other materials before the Court) suggest that
there is not complete diversity, which is required under 28 U.S.C. § 1332. Celli v. Greenwich
Ins. Co., 478 F. Supp. 3d 93, 95 (D. Mass. 2020) (“Diversity jurisdiction exists ‘only when there
is complete diversity, that is, when no plaintiff is a citizen of the same state as any defendant.’”
(quoting Gabriel v. Preble, 396 F.3d 10, 13 (1st Cir. 2005))). For instance, the signature block of
Dubose’s original complaint lists a Massachusetts address, [ECF No. 1 at 16], which would
indicate that he and M. Ojugbele were citizens of the same state at the time of filing.
“Federal courts ‘have an independent obligation to determine whether subject-matter
jurisdiction exists, even when no party challenges it.’” Industria Lechera De P.R., Inc. v. Beiró,
No. 18-1347, 2021 WL 777213, at *2 (1st Cir. 2021) (quoting Hertz Corp. v. Friend, 559 U.S.
77, 94 (2010)). Further, “[a]s a general principle, the unfavorable disposition of a plaintiff’s

federal claims at the early stages of a suit . . . will trigger the dismissal without prejudice of any
supplemental state-law claims.’” Rossi v. Gemma, 489 F.3d 26, 39 (1st Cir. 2007) (quoting
Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 1177 (1st Cir. 1995)); 28 U.S.C. § 1367(c)(3)
(“The 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 . . . .”). Thus, having
found that Dubose has failed to state a claim under federal law, and because Dubose has not
alleged diversity jurisdiction, the Court declines to exercise supplemental jurisdiction over
Dubose’s state law claims and will dismiss them without prejudice.11
IV. CONCLUSION
Accordingly, for the reasons set forth above, Defendants’ motions to dismiss, [ECF Nos.

18, 20], are GRANTED. Count I of the amended complaint is dismissed with prejudice. Counts
II and III are dismissed without prejudice.

11 In the interests of judicial efficiency, the Court notes that if Dubose seeks relief in a different
forum, he should consider the fact that the particular Massachusetts statutes that he invokes in
the amended complaint—Massachusetts General Laws Chapter 265, § 37 and Massachusetts
General Laws Chapter 6, § 178—are both criminal statutes that do not provide for private causes
of action. O’Neill v. Daimlerchrysler Corp., 538 F. Supp. 2d 304, 322 (D. Mass. 2008)
(“[Massachusetts General Laws Chapter 265, § 37] is a criminal civil rights statute, which
provides no civil cause of action.”); Roggio v. Grasmuck, 988 F. Supp. 2d 130, 139 (D. Mass.
2013) (finding that § 178 of the CORI Act is a criminal statute that does not provide a private
right of action).
SO ORDERED.
April 2, 2021 /s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10199377. Public record. Not legal advice.