UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Andre R. Levesque
v. Case N o . 09-cv-426-PB Opinion N o . 2010 DNH 084
United States of America
ORDER
Before the court is Andre Levesque’s Complaint (Doc. N o . 1 ) ,
naming the United States of America as the defendant and
challenging this court’s disposition of another case filed by
Levesque, Levesque v . New York, N o . 09-cv-246-SM (D.N.H. Nov. 3 ,
2009) (Order dismissing complaint (Doc. N o . 5 ) ) . Because
Levesque is incarcerated, proceeding pro se and in forma
pauperis, the matter is before the court for screening to
determine, among other things, whether Levesque has stated any
claim upon which relief might be granted, and whether Levesque
has asserted a claim for damages against a defendant who is
immune from such relief. See 28 U.S.C. §§ 1915(e)(2) & 1915A.
Also pending before the court are Levesque’s motion for
class action certification (Doc. N o . 11) and motion to waive or
suspend payment of the unpaid portion of the filing fee (Doc. N o .
20). For reasons set forth below, the pending motions are
denied, and the complaint is dismissed. STANDARD OF REVIEW
The court construes all of the factual assertions in pro se
pleadings liberally, however inartfully pleaded. See Erickson v .
Pardus, 551 U.S. 8 9 , 94 (2007) (per curiam) (following Estelle v .
Gamble, 429 U.S. 9 7 , 106 (1976), to construe pro se pleadings
liberally in favor of the pro se party). “The policy behind
affording pro se plaintiffs liberal interpretation is that if
they present sufficient facts, the court may intuit the correct
cause of action, even if it was imperfectly pled.” Ahmed v .
Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997); see also Castro v .
United States, 540 U.S. 375, 381 (2003) (courts may construe pro
se pleadings to avoid inappropriately stringent rules and
unnecessary dismissals). This review ensures that pro se
pleadings are given fair and meaningful consideration.
To determine if a pro se complaint should be dismissed for
failing to state a claim on which relief could be granted, the
Court must consider whether the complaint, construed liberally,
see Erickson, 551 U.S. at 9 4 , “contain[s] sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v . Iqbal, ___ U.S. ___, ___,
129 S . C t . 1937, 1949 (2009) (citation omitted). “A claim has
2 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.” Id. Inferences
reasonably drawn from the plaintiff’s factual allegations must be
accepted as true, but the Court is not bound to credit legal
conclusions, labels, or naked assertions, “devoid of ‘further
factual enhancement.’” Id. (citation omitted). Determining if a
complaint states a viable claim is a “context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense.” Id. at 1950.
BACKGROUND
In July 2009, Levesque filed a complaint in this court
alleging facts relating t o , among other things, an assault that
he suffered while in custody in New York. See Levesque v . New
York, N o . 09-cv-246-SM (D.N.H.). In that case, Levesque asked
this court to issue an order to protect him. No such order was
issued. On October 1 4 , 2009, Magistrate Judge Muirhead
recommended that the complaint in case n o . 09-cv-246-SM be
dismissed. Chief Judge McAuliffe, the district judge assigned to
the case, approved the Magistrate Judge’s Report and
3 Recommendation and dismissed the complaint. See id. (Nov. 3 ,
2009) (Order dismissing complaint (Doc. N o . 5 ) ) .
In response, Levesque filed this action, naming the United
States of America as the defendant. The allegations in the
complaint are disordered and difficult to decipher. Liberally
construed, the complaint (Doc. N o . 1 ) asserts one unique claim as
to the only named defendant: the United States is liable for
failing to protect Levesque, in that this court (McAuliffe, C.J.)
dismissed an earlier case filed by Levesque and did not issue an
injunction to protect him as requested in Levesque v . New York,
N o . 09-cv-246-SM (D.N.H.). 1
1 Levesque has filed more than twenty cases in this court. The Magistrate Judge has recommended dismissal of certain claims pending in fourteen cases filed by Levesque. See, e.g., Levesque v . New Hampshire, N o . 09-CV-437-JL (D.N.H. May 1 2 , 2010) (Report and Recommendation (Doc. N o . 2 1 ) . In the case at bar, as in many of Levesque’s other cases, plaintiff has asked the court to take the other cases into consideration in reviewing this case. See Motion to Take into Consideration Listed Cases (Doc. N o . 1 4 ) . I construe the Complaint here (Doc. N o . 1 ) to include only one claim against the United States and consider the remaining allegations involving other parties, set forth in the Complaint and in other filings, to be surplusage, repetitive of allegations and claims asserted in Levesque’s other cases. Those claims have been or will be addressed by the court in those other cases. If Levesque disagrees with the identification of his claims in this case, he must move for reconsideration, and move to amend the complaint here.
4 DISCUSSION
I. Class Action Certification
Parties to a lawsuit cannot be represented by anyone other
than themselves or a member of the bar. See 28 U.S.C. § 1654;
see also Local Rules of the United States District Court for the
District of New Hampshire (“LR”) 83.2(d) & 83.6(b) (“Pro se
parties must appear personally . . . . A pro se party may not
authorize another person who is not a member of the bar of this
court to appear on his or her behalf.”). Pro se litigants “may
not possess the knowledge and experience” needed to fairly and
adequately protect the interests of the class, as required by
Fed. R. Civ. P. 23(a)(4). See Avery v . Powell, 695 F. Supp. 6 3 2 ,
643 (D.N.H. 1988) (denying pro se plaintiff’s motion for class
certification). Levesque would not be able to fulfill the
requirements of the rule. Accordingly, Levesque’s motion for
class action certification (Doc. N o . 11) is denied.
II. Waiver of Remainder of Filing Fees
Levesque is currently detained at the New Hampshire State
Prison Secure Psychiatric Unit (“SPU”), pending resolution of
State misdemeanor charges. Levesque was previously detained at
the Merrimack County House of Corrections (“MCHC”). Detainees
5 and other prisoners are generally required to pay the full amount
of the filing fee, even if they have been granted in forma
pauperis status. See 28 U.S.C. § 1915(b).
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Andre R. Levesque
v. Case N o . 09-cv-426-PB Opinion N o . 2010 DNH 084
United States of America
ORDER
Before the court is Andre Levesque’s Complaint (Doc. N o . 1 ) ,
naming the United States of America as the defendant and
challenging this court’s disposition of another case filed by
Levesque, Levesque v . New York, N o . 09-cv-246-SM (D.N.H. Nov. 3 ,
2009) (Order dismissing complaint (Doc. N o . 5 ) ) . Because
Levesque is incarcerated, proceeding pro se and in forma
pauperis, the matter is before the court for screening to
determine, among other things, whether Levesque has stated any
claim upon which relief might be granted, and whether Levesque
has asserted a claim for damages against a defendant who is
immune from such relief. See 28 U.S.C. §§ 1915(e)(2) & 1915A.
Also pending before the court are Levesque’s motion for
class action certification (Doc. N o . 11) and motion to waive or
suspend payment of the unpaid portion of the filing fee (Doc. N o .
20). For reasons set forth below, the pending motions are
denied, and the complaint is dismissed. STANDARD OF REVIEW
The court construes all of the factual assertions in pro se
pleadings liberally, however inartfully pleaded. See Erickson v .
Pardus, 551 U.S. 8 9 , 94 (2007) (per curiam) (following Estelle v .
Gamble, 429 U.S. 9 7 , 106 (1976), to construe pro se pleadings
liberally in favor of the pro se party). “The policy behind
affording pro se plaintiffs liberal interpretation is that if
they present sufficient facts, the court may intuit the correct
cause of action, even if it was imperfectly pled.” Ahmed v .
Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997); see also Castro v .
United States, 540 U.S. 375, 381 (2003) (courts may construe pro
se pleadings to avoid inappropriately stringent rules and
unnecessary dismissals). This review ensures that pro se
pleadings are given fair and meaningful consideration.
To determine if a pro se complaint should be dismissed for
failing to state a claim on which relief could be granted, the
Court must consider whether the complaint, construed liberally,
see Erickson, 551 U.S. at 9 4 , “contain[s] sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v . Iqbal, ___ U.S. ___, ___,
129 S . C t . 1937, 1949 (2009) (citation omitted). “A claim has
2 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.” Id. Inferences
reasonably drawn from the plaintiff’s factual allegations must be
accepted as true, but the Court is not bound to credit legal
conclusions, labels, or naked assertions, “devoid of ‘further
factual enhancement.’” Id. (citation omitted). Determining if a
complaint states a viable claim is a “context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense.” Id. at 1950.
BACKGROUND
In July 2009, Levesque filed a complaint in this court
alleging facts relating t o , among other things, an assault that
he suffered while in custody in New York. See Levesque v . New
York, N o . 09-cv-246-SM (D.N.H.). In that case, Levesque asked
this court to issue an order to protect him. No such order was
issued. On October 1 4 , 2009, Magistrate Judge Muirhead
recommended that the complaint in case n o . 09-cv-246-SM be
dismissed. Chief Judge McAuliffe, the district judge assigned to
the case, approved the Magistrate Judge’s Report and
3 Recommendation and dismissed the complaint. See id. (Nov. 3 ,
2009) (Order dismissing complaint (Doc. N o . 5 ) ) .
In response, Levesque filed this action, naming the United
States of America as the defendant. The allegations in the
complaint are disordered and difficult to decipher. Liberally
construed, the complaint (Doc. N o . 1 ) asserts one unique claim as
to the only named defendant: the United States is liable for
failing to protect Levesque, in that this court (McAuliffe, C.J.)
dismissed an earlier case filed by Levesque and did not issue an
injunction to protect him as requested in Levesque v . New York,
N o . 09-cv-246-SM (D.N.H.). 1
1 Levesque has filed more than twenty cases in this court. The Magistrate Judge has recommended dismissal of certain claims pending in fourteen cases filed by Levesque. See, e.g., Levesque v . New Hampshire, N o . 09-CV-437-JL (D.N.H. May 1 2 , 2010) (Report and Recommendation (Doc. N o . 2 1 ) . In the case at bar, as in many of Levesque’s other cases, plaintiff has asked the court to take the other cases into consideration in reviewing this case. See Motion to Take into Consideration Listed Cases (Doc. N o . 1 4 ) . I construe the Complaint here (Doc. N o . 1 ) to include only one claim against the United States and consider the remaining allegations involving other parties, set forth in the Complaint and in other filings, to be surplusage, repetitive of allegations and claims asserted in Levesque’s other cases. Those claims have been or will be addressed by the court in those other cases. If Levesque disagrees with the identification of his claims in this case, he must move for reconsideration, and move to amend the complaint here.
4 DISCUSSION
I. Class Action Certification
Parties to a lawsuit cannot be represented by anyone other
than themselves or a member of the bar. See 28 U.S.C. § 1654;
see also Local Rules of the United States District Court for the
District of New Hampshire (“LR”) 83.2(d) & 83.6(b) (“Pro se
parties must appear personally . . . . A pro se party may not
authorize another person who is not a member of the bar of this
court to appear on his or her behalf.”). Pro se litigants “may
not possess the knowledge and experience” needed to fairly and
adequately protect the interests of the class, as required by
Fed. R. Civ. P. 23(a)(4). See Avery v . Powell, 695 F. Supp. 6 3 2 ,
643 (D.N.H. 1988) (denying pro se plaintiff’s motion for class
certification). Levesque would not be able to fulfill the
requirements of the rule. Accordingly, Levesque’s motion for
class action certification (Doc. N o . 11) is denied.
II. Waiver of Remainder of Filing Fees
Levesque is currently detained at the New Hampshire State
Prison Secure Psychiatric Unit (“SPU”), pending resolution of
State misdemeanor charges. Levesque was previously detained at
the Merrimack County House of Corrections (“MCHC”). Detainees
5 and other prisoners are generally required to pay the full amount
of the filing fee, even if they have been granted in forma
pauperis status. See 28 U.S.C. § 1915(b). The statute specifies
that payment of the remaining fee may be made in installments.
Id.
In an Order dated January 2 2 , 2010, the court assessed an
initial partial filing fee on Levesque in accordance with section
1915(b). See Order (Doc. N o . 13) (requiring payment of initial
filing fee and setting payment schedule for remainder of fee in
accordance with 28 U.S.C. § 1915(b)(2)). Levesque paid the
initial fee on March 1 , 2010, from his MCHC inmate account while
he was incarcerated at MCHC. Levesque was transferred to SPU in
March 2010, and no further filing fee payments have been made
since March 1 , 2010. Levesque has described difficulties he has
had at SPU in requesting that his prisoner account be debited to
pay the fee. Specifically, Levesque has asserted that he has
filled out the forms and provided them to a social worker who
told him that she would take care of processing the forms, and he
has also sent the forms to the New Hampshire State Prison
Warden’s office. As it appears that payment according to the
Court’s January 2 2 , 2010 in forma pauperis Order (Doc. N o . 13)
6 will be forthcoming from Levesque’s SPU inmate account, the
motion to waive or suspend payment of the remainder of the filing
fee (Doc. N o . 20) is denied.
III. Section 1915A Review of Complaint
Pursuant to 28 U.S.C. § 1915A(a), this court reviews all
complaints filed by prisoners, including pretrial detainees,
seeking redress from governmental entities or officers. As a
consequence of this screening, the court will dismiss the
complaint if it is “frivolous, malicious, or fails to state a
claim upon which relief may be granted,” or “seeks monetary
relief from a defendant who is immune from such relief.” Id.
§ 1915A(b). Similarly, 28 U.S.C. § 1915(e)(2)(B), requires the
court to dismiss a complaint filed in forma pauperis, at any
time, even if part of the filing fee has been paid, “if the court
determines that . . . the action or appeal[:] (i) is frivolous
or malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who
is immune from such relief.” Id. As explained more fully below,
the complaint must be dismissed in this case as it includes
claims against defendants deemed immune from the requested
relief.
7 A. United States
Only an act of Congress can waive the United States’
immunity from suit. See Dep’t of Army v . Blue Fox, Inc., 525
U.S. 255, 260 (1999). Waivers of sovereign immunity are not
implied and are strictly construed in favor of the sovereign.
See Lane v . Pena, 518 U.S. 1 8 7 , 192 (1996).
Levesque’s complaint includes a demand for damages against
the United States. The precise nature of the claim is unclear,
but Levesque appears to contend that the federal government had a
duty to protect him, upon his filing a lawsuit in federal court
requesting an injunction.
Whether arising under the Constitution or sounding in tort,
however, Levesque’s claim is barred by sovereign immunity or is
otherwise beyond this court’s jurisdiction. See McNeil v . United
States, 508 U.S. 106, 113 (1993) (Federal Tort Claims Act “bars
claimants from bringing suit in federal court until they have
exhausted their administrative remedies” under 28 U.S.C. § 2675);
Tapia-Tapia v . Potter, 322 F.3d 7 4 2 , 745 (1st Cir. 2003) (Bivens
claim against United States for money damages is barred by
sovereign immunity). Accordingly, Levesque’s claims against the
United States are barred by sovereign immunity, and the United
8 States is hereby dismissed as a defendant from this action.
CONCLUSION
The motion for class action certification (Doc. N o . 11) and
motion to waive the unpaid portion of the filing fee (Doc. N o .
20) are denied. As no claim remains pending in this action
against any defendant, the Complaint (Doc. N o . 1 ) is dismissed.
All other motions pending in this action (Doc. Nos. 3 , 4 , 8 , 1 0 ,
1 4 , and 15) are denied as moot.
SO ORDERED.
/s/Paul Barbdoro Paul Barbadoro United States District Judge
May 1 8 , 2010
cc: Andre R. Levesque, pro se