Torrey v. FBI United States of America

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

MICHELLE TORREY and CHRISTIAN )

SOARES, )

Plaintiffs, )

) Civil Action No.

v. ) 24-10864-WGY

)

FBI UNITED STATES OF )

AMERICA, et al., )

Defendants. )

___________________________________)

MEMORANDUM AND ORDER

YOUNG, D.J. June 17, 2024

For the reasons set forth below, the Court allows Michelle

Torrey’s motion for leave to proceed in forma pauperis and denies

without prejudice the motion for counsel. If Michelle Torrey

wishes to proceed with this action, the Court grants her time to

file an amended complaint that sets forth a plausible claim upon

which relief may be granted.

I. Background

Michelle Torrey (“Torrey”) initiated this action by filing a

pro se complaint on behalf of herself and her adult son, Christian

Soares (“Soares”), seeking the return of certain property that the

government has sought to have forfeited as derived from proceeds

obtained as a result of criminal activity. With the complaint,

Torrey filed an Application to Proceed in District Court Without

Prepaying Fees or Costs and a motion to appoint counsel.

Accompanying the complaint are copies of (1) Soares’ General

Durable Power of Attorney appointing Torrey as attorney-in fact;

and (2) the November 16, 2023 Preliminary Order of Forfeiture from

Soares’ pending criminal action. The Court may take judicial

notice that Soares is a criminal defendant.1 See United States v.

Soares, CR. No. 1:19-cr-10296-WGY-1 (D. Mass.).

The complaint is submitted on the preprinted Pro Se 1 form

provided by the Administrative Office of the United States Courts.

Doc. No. 1. The case caption identifies the defendant as the

United States of America and the body of the complaint identifies

the following four defendants: (1) F.B.I. United States of America;

(2) A.T.F.; (3) Brockton Police Dept.; and (4) State Police Dept.

Id. at 1 (caption), ¶ I (the parties to the complaint). Torrey

checked the box indicating “federal question” jurisdiction and

lists several laws that are at issue in this case including 18

U.S.C. § 983(c); 19 U.S.C. § 1615; 21 U.S.C. § 881; 21 U.S.C. §

853; 28 U.S.C. §§ 1345, 1355; 28 U.S.C. § 2412; 31 U.S.C. § 5317;

42 U.S.C. § 1983; and the Fourth, Fifth, Sixth and Eighth

1 It is “well-accepted that federal courts may take judicial notice

of proceedings in other courts if those proceedings have relevance

to the matters at hand.” Kowalski v. Gagne, 914 F.2d 299, 305 (1st

Cir. 1990); see Lydon v. Local 103, Int'l Bhd. of Elec. Workers,

770 F.3d 48, 53 (1st Cir. 2014); see also United States v. Mercado,

412 F.3d 243, 247 (1st Cir. 2005).

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Amendments to the United States Constitution. Id. at ¶ II(A) (if

the basis for jurisdiction is a federal question). Torrey seeks

monetary relief and return of property. Id. at ¶ IV (relief)

(“immediate return of monies and items and [$]500,000 damages”).

Torrey states that “Law [e]nforcement stole from her home as a

probation violation warrant for [her] son turned into complete

disregard for rule of law and allowed law enforcement acting

outside of their role obtain an illegal search warrant which was

than the vehicle for law enforcement to plant evidence and steal

from [Torrey] and her family.” Id.

In the statement of claim, Torrey alleges that during a

search of her home, law enforcement stole several items of

jewelry and that she “is owed “$148,820.00 in addition to

[$]6,000.00 taken from bedroom and room off bedroom hidden in

various locations.” Id. at ¶ III (statement of claim). Torrey

further states that her real estate license was not renewed “due

to unpaid taxes which claimant cannot pay due to Government

holding money hostage and not affording claimant with a

forfeiture hearing for over 3 years 9 months.” Id.

II. In Forma Pauperis Motion and Appearances

The Application to Proceed in District Court Without

Prepaying Fees or Costs (also known as a motion for leave to

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proceed in forma pauperis) is signed by Torrey. After review, the

Court concludes that Torrey is without assets to pay the filing

fee and ALLOWS the motion only as to Torrey.

Under federal law, a court may “authorize the commencement .

. . of any suit . . . without prepayment of fees or security

therefor, by a person who submits an affidavit that includes a

statement of all assets . . .” 28 U.S.C. § 1915(a)(1). Although

Soares signed a power of attorney that appoints Torrey as attorney-

in-fact, a non-attorney cannot litigate on behalf of another

person. See 28 U.S.C. § 1654; Herrera–Venegas v. Sanchez–Rivera,

681 F.2d 41, 42 (1st Cir. 1982); Local Rule 83.5.3(a).

Because Torrey is not alleged to be an attorney, she cannot

represent Soares. Moreover, Torrey does not have standing to

represent Soares in her capacity as his parent because Soares is

an adult, and any statutory authority that permits a parent to

represent a child does not apply. See e.g. Winkelman v. Parma

City Sch. Dist., 550 U.S. 516, 531 (2007) (a parent may litigate

in federal court a claim under the Individuals with Disabilities

Education Act (“IDEA”) because the “IDEA does not differentiate

... between the rights accorded to children and the rights accorded

to parents.”). Soares may be a plaintiff if addition of him as a

party would be in accordance with the rules on joinder of claims

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and parties, but even then, he would have to sign the amended

complaint and would have to sign all papers submitted under his

name.

III. Standard of Review

Because Torrey is proceeding in forma pauperis, summonses do

not issue until the court reviews the complaint and determines

that it satisfies the substantive requirements of 28 U.S.C. § 1915.

Section 1915 authorizes federal courts to dismiss a complaint sua

sponte if the claims therein lack an arguable basis in law or in

fact, fail to state a claim on which relief may be granted, or

seek monetary relief against a defendant who is immune from such

relief. See 28 U.S.C. § 1915(e)(2).

To state a claim upon which relief may be granted, a complaint

must include “a short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

“‘The fundamental purpose’” of this pleading rule “‘is to protect

a defendant’s . . . right to know in advance the nature of the

cause of action being asserted against him.’” Martinez v.

Petrenko, 792 F.3d 173, 179 (1st Cir. 2015) (quoting Ruiz Rivera

v. Pfizer Pharm., LLC, 521 F.3d 76, 84 (1st Cir. 2008)). The

claims must be set forth “in numbered paragraphs, each limited as

far as practicable to a single set of circumstances.” Fed. R. Civ.

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P. 10(b). The complaint must contain “‘enough detail to provide

a defendant with fair notice of what the . . . claim is and the

grounds upon which it rests.’” Silverstrand Invs. v. AMAG Pharm.,

Inc., 707 F.3d 95, 101 (1st Cir. 2013) (quoting Ocasio-Hernandez

v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011)).

When examining the sufficiency of the pleadings, the court

considers whether the plaintiff has pled “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). “A claim has facial

plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). “In evaluating whether a complaint states a

plausible claim, [the court] ‘perform[s] [a] two-step analysis.’”

Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016) (quoting

Cardigan Mountain Sch. v. N.H. Ins. Co., 787 F.3d 82, 84 (1st Cir.

2015)). “First, the court must distinguish ‘the complaint’s

factual allegations (which must be accepted as true) from its

conclusory legal allegations (which need not be credited).’”

Garcia-Catalan v. United States, 734 F.3d 100, 103 (1st Cir. 2013)

(quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st

Cir. 2012)). Second, the court must determine whether the factual

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allegations present a “‘reasonable inference that the defendant is

liable for the misconduct alleged.’” Haley v. City of Boston, 657

F.3d 39, 46 (1st Cir. 2011) (quoting Iqbal, 556 U.S. at 663).

In conducting this review, the Court liberally construes the

complaint because Torrey is proceeding pro se. See Haines v.

Kerner, 404 U.S. 519, 520-21 (1972).

IV. Discussion

Torrey’s complaint does not meet the standard for a “short

and plain statement” of her claim showing that she is entitled to

relief. Fed. R. Civ. P. 8(a)(2). Here, Torrey complains that

during the course of a search of her Brockton home, her property

was seized and is now subject to forfeiture to the Government.

However, she has not alleged any facts from which the Court may

reasonably infer that one or more of the defendant law enforcement

agencies violated federal law. In particular, she does not

provide the date of the search and does not state what action was

taken by each defendant. Torrey has an obligation to set forth

factual allegations that would permit a person unfamiliar with

legal proceedings surrounding the search to understand what

specific acts of alleged misconduct by each defendant gave rise to

this action.

As written, the complaint makes no claims that would allow

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Torrey to assert a civil rights claim against any of the

defendants. To the extent Torrey seeks to assert a claim under

42 U.S.C. § 1983, this federal civil rights statute “furnishes a

cause of action against any person who, while acting under color

of state law, transgresses someone else’s constitutional rights.”

Alfano v. Lynch, 847 F.3d 71, 74 n.1 (1st Cir. 2017) (citing Kalina

v. Fletcher, 522 U.S. 118, 123 (1997)). There is no comparable

federal statute applicable to constitutional claims against

federal officers.2

As to the two federal agencies named as defendants (the F.B.I.

and the A.T.F.), these federal agencies have sovereign immunity

from suit unless such immunity has been waived. See FDIC v. Meyer,

510 U.S. 471, 475 (1994). Here, the complaint fails to state what

role, if any, these federal agencies may have played in either the

search of Torrey’s home or the seizure of her property.

As to the Brockton Police and the “State Police” Departments,

these departments are not suable entities under Section 1983. For

purposes of a Section 1983 action, a police department is

2 In 1971, the Supreme Court recognized an implied private action

for damages against federal officers alleged to have violated an

individual’s constitutional rights. Bivens v. Six Unknown Named

Agents, 403 U.S. 388 (1971). Since that time, the availability of

Bivens-type causes of action has been narrowly circumscribed,

Egbert v. Boule, 142 S. Ct. 1793, 1800 (2022).

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“considered a non-person” and, therefore, “is not a suable entity.”

Curran v. City of Boston, 777 F.Supp. 116, 120 (D. Mass. 1991).

The Brockton Police Department is separate from any individual

police officers who may have been involved in the search referenced

in the complaint. The City of Brockton could be named instead

of the Brockton Police Department. However, the municipality

itself may only be named as a defendant in certain circumstances.

In Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), the Supreme

Court outlined the limited circumstances under which a

municipality may be liable under Section 1983. Only when the

municipality, through the execution of its policies, actually

deprives an individual of her constitutional rights, is it liable

for the injury. Id. at 694. To establish municipal liability, the

policy must actually cause the violation of constitutional rights;

it must be the moving force behind the violation. Id.

A claim for monetary damages against the Commonwealth of

Massachusetts would be barred by the Eleventh Amendment. See Will

v. Michigan Dept. of State Police, 491 U.S. 58, 71 n. 10 (1989)

(“Of course a state official in his or her official capacity, when

sued for injunctive relief, would be a person under § 1983 because

‘official-capacity actions for prospective relief are not treated

as actions against the State.’ Kentucky v. Graham, 473 U.S., at

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167, n. 14, 105 S.Ct., at 3106, n. 14; Ex parte Young, 209 U.S.

123, 159–160, 28 S.Ct. 441, 453–454, 52 L.Ed. 714 (1908).”).

Finally, there is interplay between the administrative

forfeiture statutes referenced in the complaint. See 18 U.S.C. §

983 (the Civil Asset Forfeiture Reform Act); 19 U.S.C. § 1615

(general civil forfeiture provisions that provide exclusive basis

for a district court to set aside an administrative forfeiture);

21 U.S.C. § 881 (allows the Government to seize and forfeit

property purchased with proceeds from drug trafficking).

However, Torrey has not clearly stated whether she filed a claim

and/or petition concerning the seized property.

Reading Torrey’s complaint generously, the Court finds that

the complaint does not contain sufficient allegations to state a

claim against any of the defendants.

V. Order

For the aforementioned reasons, it is hereby Ordered:

1. The Application to Proceed in District Court Without

Prepayment of Fees or Costs is ALLOWED as to Michelle Torrey.

2. The Motion for Appointment of Counsel is DENIED without

PREJUDICE.

3. If Torrey wishes to proceed in this matter, she must

file an amended complaint curing the pleading deficiencies and

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setting forth a plausible claim upon which relief may be granted.

Failure to comply with this directive within twenty-eight (28)

days of the date of this Memorandum and Order will result in

dismissal of this action.

SO ORDERED.

Dated: June 17, 2024 /s/ William G. Young

WILLIAM G. YOUNG

UNITED STATES DISTRICT JUDGE

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