ROSS v. MCCORMACK

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

Kevin Lee Ross

v. Case No. 24-cv-14-SDE

Andrew McCormack, et al.

REPORT AND RECOMMENDATION

Plaintiff Kevin Lee Ross, appearing pro se, is currently

confined in the Somerset County Jail. He has filed a complaint

(Doc. No. 1) naming as defendants a federal prosecutor, federal

probation officer and two other individuals he identifies as his

brothers. The complaint is before the undersigned Magistrate

Judge for preliminary review. See 28 U.S.C. § 1915A(a)

(subjecting complaints to preliminary review “as soon as

practicable after docketing” where plaintiff is “a prisoner

seek[ing] redress from a governmental entity or officer or

employee of a governmental entity.”)

Preliminary Review Standard

Plaintiff’s complaint is subject to screening under the

Prison Litigation Reform Act because Plaintiff currently is

incarcerated and seeks redress from governmental entities and

officers. See 28 U.S.C. § 1915A(a), (c). The § 1915A screening

requires courts to “identify cognizable claims or dismiss the

complaint, or any portion of the complaint, if the complaint (1)

is frivolous, malicious, or fails to state a claim . . .; or (2)

seeks monetary relief from a defendant who is immune from such

relief.” 28 U.S.C. § 1915A(b).

When considering whether a complaint states a claim for

which relief may be granted, courts must assume the truth of all

well-plead facts and give the plaintiff the benefit of all

reasonable inferences therefrom. Ocasio-Hernandez v. Fortuno-

Burset, 640 F.3d 1, 12 (1st Cir. 2011). A complaint fails to

state a claim upon which relief can be granted if it does not

plead “enough facts to state a claim to relief that is plausible

on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007). “The relevant question . . . in assessing plausibility

is not whether the complaint makes any particular factual

allegations but, rather, whether ‘the complaint warrant[s]

dismissal because it failed in toto to render plaintiffs’

entitlement to relief plausible.’” Rodríguez–Reyes v. Molina–

Rodríguez, 711 F.3d 49, 55 (1st Cir. 2013) (quoting Twombly, 550

U.S. at 569 n. 14).

Discussion

The plaintiff alleges he was the victim of a conspiracy,

instigated by his brothers, to steal a $420,000 insurance

settlement and to “get him out of the way to do it.” Compl.

(Doc. No. 1) at 3. In addition to his brothers -- defendants

Scott Lee Ross and Michael Lee Ross – plaintiff claims that

prosecutor Andrew McCormack and probation officer Bryce

Turgenson “fell right in line to help the conspiracy along.”

Id. He alleges no additional facts. Mr. Ross describes his

legal claims as: 1) false arrest; 2) double jeopardy; 3)false

imprisonment; 4) unreasonable search and seizure; 5) denial of

fair trial and due process; and 6) conspiracy to interfere with

civil rights and neglect to prevent. He seeks a declaratory

judgment and compensatory and punitive damages. Id.

In the first instance, the complaint consists of only

conclusory legal statements unsupported by any facts to support

them. The asserted claims lack the “who, what, where, when and

why” information as to each of these causes of action. See Brown

v. Forensic Health Servs., Inc., No. CIV.A. 13-13078-RGS, 2013

WL 6814852, at *3 (D. Mass. Dec. 23, 2013).

“Though . . . pro se complaints are to be read generously,

allegations . . . must nevertheless be supported by material

facts, not merely conclusory statements.” Ross v. Bangor Sav.

Bank, No. 1:24-CV-00021-NT, 2024 WL 808811, at *2 (D. Me. Feb.

27, 2024) (quoting Slotnick v. Garfinkle, 632 F.2d 163, 165 (1st

Cir. 1980) (citation omitted)). The complaint may not consist

entirely of “conclusory allegations that merely parrot the

relevant legal standard.” Young v. Wells Fargo, N.A., 717 F.3d

224, 231 (1st Cir. 2013); see also Ferranti v. Moran, 618 F.2d

888, 890 (1st Cir. 1980) (explaining that the liberal standard

applied to the pleadings of pro se plaintiffs “is not to say

that pro se plaintiffs are not required to plead basic facts

sufficient to state a claim”). The pleading rules “demand[]

more than an unadorned, the-defendant- unlawfully-harmed-me

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A

pleading that offers labels and conclusions or a formulaic

recitation of the elements of a cause of action will not do.”

Id.

Mr. Ross’ complaint satisfies none of these criteria.

Accordingly, dismissal is warranted because he has not alleged

any facts that would support a plausible claim against any of

the defendants. See Fed. R. Civ. P. 12(b)(6).

In addition to the failure to state a claim, other reasons

also support dismissal of the complaint. Dismissal of claims

against defendant McCormack is appropriate because, subject to

exceptions not present here, “a prosecutor is entitled to

immunity against civil liability for the decision whether to

initiate a prosecution and for actions taken in presenting the

case against the defendant.” Larsen v. Maine, No. 1:20-CV-00450-

JDL, 2021 WL 1394461, at *3–4 (D. Me. Apr. 13, 2021), report and

recommendation adopted, 2021 WL 1996394 (D. Me. May 18, 2021),

aff'd, No. 21-1422, 2022 WL 1714568 (1st Cir. Mar. 21, 2022)

(citing Imbler v. Pachtman, 424 U.S. 409, 431 (1976)).

Similarly, defendant Turgenson, a probation officer, is immune

from civil liability. See Fields v. Levin, No. CV 19-1100WES,

2020 WL 3001294, at *3 (D.N.H. Apr. 16, 2020), report and

recommendation adopted, 2020 WL 3000956 (D.N.H. June 3, 2020).

And finally, dismissal against defendants Scott Lee Ross and

Michael Lee Ross is warranted because the alleged constitutional

violations can only be asserted against government actors, not

private parties. Ouellette v. Kennebec Behav. Health, No. 2:14-

CV-00427-GZS, 2015 WL 413883, at *3 (D. Me. Jan. 30, 2015).

Conclusion

Based on the foregoing, the district judge should dismiss

the complaint. If the district judge adopts this

recommendation, all pending motions should be denied as moot.

Any objections to this Report and Recommendation must be

filed within fourteen days of receipt of this notice. See Fed.

R. Civ. P. 72(b)(2). The fourteen-day period may be extended

upon motion. Only those issues raised in the objection(s) to

this Report and Recommendation are subject to review in the

district court. See Sch. Union No. 37 v. United Nat'l Ins. Co.,

617 F.3d 554, 564 (1st Cir. 2010). Any issues not preserved by

such objection(s) are precluded on appeal. See id. Failure to

file any objections within the specified time waives the right

to appeal the district court's Order. See Santos-Santos v.

Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).

Andrea K. Johnstone

United States Magistrate Judge

Sitting by Designation

March 12, 2024

Cc: Kevin Lee Ross, pro sé