Mercado v. Department of Social Services

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

LESLIE MERCADO, aka Leslie Ann )

Reis and Leslie Reis Carrington, )

Plaintiff, )

) Civil Action

v. ) No. 23-11140-PBS

)

DEPARTMENT OF SOCIAL )

SERVICES, et al., )

Defendants. )

MEMORANDUM AND ORDER

November 15, 2023

SARIS, D.J.

In a prior Order, the Court dismissed the Complaint filed

by Plaintiff Leslie Mercado without prejudice and with leave to

file an amended complaint. For the reasons set forth below, the

Court denies the motion to submit evidence (Dkt. No. 10) and

dismisses the Amended Complaint without prejudice pursuant to 28

U.S.C. §1915(e)(2)(B).

BACKGROUND

Leslie Mercado, a resident of Boston, brings this action

alleging that she was subjected to abuse while a minor in foster

care. The defendants named in the original complaint were the

Department of Children and Families, a social worker, an

attorney and two individuals identified as foster parents. (Dkt.

No. 1).

By Order dated July 26, 2023, the Court allowed plaintiff

leave to proceed in forma pauperis and found that the complaint

is subject to dismissal pursuant to 28 U.S.C. §1915(e)(2)(B) for

failing to state claim upon which relief can be granted. (Dkt.

No. 8). Although the complaint named several defendants, the

Court recognized that no factual allegations were directed

against any one defendant. Id. Additionally, the Court

explained that the defendant social worker and attorney are

immune from suit for damages in their official capacities; the

defendant agency has immunity under the Eleventh Amendment; and

that private conduct, no matter how discriminatory or wrongful,

is generally beyond the reach of 42 U.S.C. § 1983. Id. Plaintiff

was advised that if she wished to proceed with this action, she

may file an amended complaint. Id.

The amended complaint was timely filed in accordance with

the Court’s July 26, 2023 Order. (Dkt. No. 9). Because Mercado

is proceeding in forma pauperis, the amended complaint is

subject to screening pursuant to 28 U.S.C. § 1915(e) and will be

liberally construed because she is self-represented. See Rodi

v. Southern New England Sch. of Law, 389 F.3d 5, 13 (1st Cir.

2004).

THE AMENDED COMPLAINT

The Amended Complaint again names the Department of

Children and Families (“DCF”), Mercado’s former foster mother, a

DCF social worker and a DCF attorney, along with 17 additional

defendants not previously named in the original complaint. Am.

Compl. (Dkt. No. 9). The additional defendants are the Boston

Medical Center, Carney Hospital, the Cambridge Health Alliance

Somerville Campus, and DotHouse Health (the “medical

providers”); the Cambridge Juvenile Court, Judge Tyre and Judge

Blitzman (the “judicial defendants”); the Charles H. Taylor

School and Charles Hayden Goodwill Inn School (the “educational

defendants”); Guy Harold Harris, and Delores Coleman (the “DCF

defendants”); Officer Johnson (the “police defendant”); the

Commonwealth of Massachusetts; the “Foster Care System,” the

U.S. Department of Health and Human Services; the Social

Security Office; and Mercado’s former foster sister. Id. at 1-

3.

Plaintiff seeks to impose liability based on causes of

action pursuant to 42 U.S.C. § 1983, Title VI of the Civil

Rights Act, and 18 U.S.C. §§ 242, 287, 286, 1951, 1031, 1961 and

371. Id. at 20. Specifically, plaintiff lists the alleged

violations as follows: (A) the violation of Plaintiff’s

constitutional rights; (B) negligence and gross negligence; (C)

intentional infliction of emotional distress; (D) fraudulent

misrepresentation; (E) violation of child benefits and bad

placement; (F) violation of right to family unity and

reunification; (G) violation of right to proper education; (H)

the violation of right to truthful information; (I) violation of

right to privacy; (J) violation of right to individual autonomy;

(K) violation of right to proper representation in court; (L)

violation of right to not be subjected to torture and cruel,

inhuman or degrading treatment; (M) violation of right to

truthful and accurate records; (N) violation of right to freedom

from discrimination; (O) violation of right to adequate medical

care; (P) violation of right to freedom of expression; (Q)

violation of right to protection from child abuse; (R) violation

of right to proper name; (S) violation of right to proper

education; (T) violation of right to privacy and

confidentiality; and (U) violation of right to individual

autonomy and self-determination. Id. at 4-6.

For relief, Mercado seeks unspecified compensatory and

punitive damages; injunctive relief to ensure proper care,

support, and protection of children in state custody;

declaratory relief to establish Mercado’s rights and legal

status; and an order for the Defendants to provide accurate and

truthful records and information. Id. at 7.

DISCUSSION

As an initial matter, the federal criminal statutes

referend in the Amended Complaint do not provide a  basis for

relief. Generally speaking, there is no federal right to have

criminal wrongdoers prosecuted. See Nieves-Ramos v. Gonzalez

De-Rodriguez, 737 F. Supp. 727, 728 (D.P.R. 1990) (citing Linda

R.S. v. Richard D., 410 U.S. 614, 619 (1973)(“a private citizen

lacks a judicially cognizable interest in the prosecution or non

prosecution of another”)).    The federal criminal statutes

referred to in the Amended Complaint do not confer a private

right of action. Cent. Bank of Denver v. First Interstate Bank

of Denver, 511 U.S. 164, 190 (1994) (refusing to infer a private

right of action from a “bare criminal statute”); see e.g. Cok v.

Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (per curiam)(stating

that only the United States as prosecutor can bring a complaint

under 18 U.S.C.§§ 241-242).

To the extent plaintiff asserts that defendants are liable

for racketeering, in violation of the Racketeer Influenced and

Corrupt Organization (“RICO”) Act, plaintiff “must allege ‘(1)

conduct, (2) of an enterprise, (3) through ... a pattern ... of

racketeering activity.’” Home Ortho. Corp. v. Rodríguez, 781

F.3d 521, 528 (1st Cir. 2015) (quoting Kenda Corp. v. Pot O'Gold

Money Leagues, Inc., 329 F.3d 216, 233 (1st Cir. 2003)). While

the Amended Complaint references the RICO statute, it falls

short of alleging facts that, if proven, would establish that

any defendant engaged in two or more predicate acts of

racketeering, conducted by an enterprise, that proximately

caused injury to plaintiff’s business or property interest.

As to Title VI of the Civil Rights Act of 1964, 42 U.S.C. §

2000D, the Supreme Court has interpreted Section 601 to create a

private right of action for intentional discrimination.

Alexander v. Sandoval, 532 U.S. 275, 279-80 (2001). However,

Mercado has not sufficiently alleged that she was subject to

intentional discrimination. Moreover, the Eleventh Amendment

generally bars suits against the State, including its

departments and agencies, unless the State has waived its

immunity or Congress has explicitly overridden it. United

States v. Mitchell, 445 U.S. 535, 538 (1980).

As to any civil rights claims Mercado seeks to assert

pursuant to 42 U.S.C. § 19831, the Amended Complaint contains

many of the same pleading deficiencies as the original

complaint. Although Mercado again alleges that she was

subjected to assault and abuse while she was a minor and in

foster, the Amended Complaint fails to direct any specific

factual allegations against any one defendant. Mercado’s vague

and conclusory allegations are insufficient to state a claim.

See Penalbert-Rosa v. Fortuno-Burset, 631 F.3d 592, 594 (1st

Cir. 2011) (“an adequate complaint must include not only a

1 “A claim under section 1983 has two essential elements. First,

the challenged conduct must be attributable to a person acting

under color of state law” and “second, the conduct must have

worked a denial of rights secured by the Constitution or by

federal law.” Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir.

1997).

plausible claim but also a plausible defendant”). Plaintiff

makes bald assertions that the Defendants violated her rights

under various laws, but apart from these assertions, she does

not clearly link specific factual allegations of wrongdoing

against each Defendant. Rather, these assertions are generalized

and made as part of a general description of her claims. The

claims are primarily asserted collectively against the

Defendants, or groups of Defendants, without dates of alleged

actions or inactions taken by individual defendants. Given the

absence of any specific facts, and only conclusory allegations,

the amended complaint fails to allege a plausible claim for

relief.

The Commonwealth, its agencies and employees sued in their

official capacities are immune from suite for damages and that

private conduct, no matter how discriminatory or wrongful, is

generally beyond the reach of 42 U.S.C. § 1983. Under the

judicial immunity doctrine, the claims against the judicial

defendants are not legally cognizable because absolute judicial

immunity protects a judge from acts performed within the scope

of his or her jurisdiction. Mireles v. Waco, 502 U.S. 9, 11

(1991) (per curiam ) (“[J]udicial immunity is an immunity from

suit, not just from the ultimate assessment of damage.”).

Finally, Mercado now seeks to bring in this action several

different claims against unrelated defendants. While Rule 18(a)

of the Federal Rules of Civil Procedure permits Mercado “to

bring multiple claims against a defendant in a single action . .

. it does not permit the joinder of unrelated claims against

different defendants.” Chase v. Chafee, No. 11-586ML, 2011 WL

6826504, at *2 (D.R.I. Dec. 9, 2011), report and recommendation

adopted, No. 11-586 ML, 2011 WL 6826629 (D.R.I. Dec. 28, 2011);

see Spencer v. Bender, No. 08–11528–RGS, 2010 WL 1740957 at *2

(D. Mass. April 28, 2010) (citing George v. Smith, 507 F.3d 605,

607 (7th Cir. 2007)).

CONCLUSION

For the forgoing reasons, it is hereby ordered

1. The motion to submit evidence (Dkt. No. 10) is DENIED.

2. The Amended Complaint is dismissed without prejudice

pursuant to 28 U.S.C. §1915(e)(2)(B) for failing to state a

claim upon which relief may be granted. The Clerk shall enter a

separate order of dismissal.

SO ORDERED.

/s/ Patti B. Saris

PATTI B. SARIS

UNITED STATES DISTRICT JUDGE