CURTIS HOWELL,
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`Plaintiff,
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`v.
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`MASSACHUSETTS ATTORNEYS
`GENERAL, et al.,
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`Defendants.
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`Civil Action No. 21-11979-ADB
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`MEMORANDUM AND ORDER
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`Case 1:21-cv-11979-ADB Document 49 Filed 07/18/22 Page 1 of 11
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
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`BURROUGHS, D.J.
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` Now before the Court is the amended complaint and three motions filed by pro se
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`litigant Curtis Howell. For the reasons set forth below, the Court will deny the motions and
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`order that action be dismissed.
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`I.
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`Background
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`Howell commenced this action on December 7, 2021, by filing a complaint, a motion for
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`leave to proceed without prepayment of the filing fee (often referred to as a motion for leave to
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`proceed in forma pauperis) and a motion for appointment of counsel. He has since filed an
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`amended complaint [ECF No. 11], another motion for leave to proceed in forma pauperis, and
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`numerous other motions. In an ordered dated April 6, 2022 [ECF No. 27], the Court granted
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`Howell’s in forma pauperis motions and, except for a motion to dismiss filed by the City of
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`Boston [ECF No. 17], disposed of all pending motions. In its April 6, 2022 order, the Court
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`prohibited Howell from filing additional motions in this case until the Court had “reviewed the
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`amended complaint and issued an order concerning the issuance of summonses.” [ECF No. 27,
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`Case 1:21-cv-11979-ADB Document 49 Filed 07/18/22 Page 2 of 11
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`¶ 11].1 On April 8, 2022, the Court entered an electronic order denying Howell’s motion for
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`default judgment. [ECF No. 29].
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`Howell has filed notices of appeal of the Court’s April 6 and April 8, 2022, orders. [ECF
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`Nos. 39, 40]. The United States Court of Appeals for the First Circuit is addressing both matters
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`in a single appeal. See Howell v. Massachusetts Att’y Gen., Case No. 22-1475 (1st Cir.). On
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`July 11, 2022, the First Circuit issued an order directing Howell to show cause no later than July
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`25, 2022, as to why his appeal should not be dismissed for lack of jurisdiction. See id. The First
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`stated:
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`Id.
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`It appears that this Court may lack jurisdiction because the orders are not final
`judgments or appealable orders, and appellant’s claims remain pending in the
`district court. See 28 U.S.C. §§ 1291, 1292; Ramirez v. Rivera-Dueno, 861 F.2d
`328, 333 (1st. Cir. 1988) (stating that, as a general matter, jurisdiction exists under
`28 U.S.C. § 1291 where the appealed order terminates the case on the merits and
`only leaves the court to execute judgment).
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`The Court is of the view that it retains jurisdiction over this action notwithstanding
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`Howell’s pending appeal. In general, “the filing of a notice of appeal divests the district court of
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`jurisdiction over matters related to the appeal.” Acevedo-Barcia v. Vera-Monroig, 368 F.3d 49,
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`58 (1st Cir. 2004). However, “the district court can proceed, notwithstanding the filing of an
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`appeal, if the notice of appeal is defective in some substantial and easily discernible way (if, for
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`example, it is based on an unappealable order).” Rivera-Torres v. Ortiz Velez, 341 F.3d 86, 96
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`(1st Cir. 2003) (quoting United States v. Brooks, 145 F.3d 446, 456 (1st Cir. 1998)). In this case,
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`Howell’s notices of appeal are almost certainly based on unappealable orders and are therefore
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`1 Notwithstanding, Howell has continued to file various motions. [ECF Nos. 32, 33, 34].
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`2
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`Case 1:21-cv-11979-ADB Document 49 Filed 07/18/22 Page 3 of 11
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`patently defective. Neither the April 6, 2022, nor the April 8, 2022, order was a final judgment,
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`see 28 U.S.C. § 1291 (“The courts of appeals . . . shall have jurisdiction of appeals from all final
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`decision of the district courts of the United States.”1), and neither order was otherwise
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`immediately appealable.2,3
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`II.
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`Pending Motions
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`Pending before the Court are Howell’s “Motion to objection to ruling, (motion to correct
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`clerical errors” [ECF No. 32], “Motion For Relief Of Judgement” [ECF No. 33], and “Motion to
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`Object/Motion for Default” [ECF No. 34]. The Court DENIES all three motions.
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`These motions are premised on Howell’s misunderstanding regarding the meaning of “in
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`forma pauperis,” and the way in which a case proceeds where a plaintiff is proceeding without
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`the prepayment of the filing fee.
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`In several of Howell’s submissions, he has objected to the Court’s use of the term “in
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`forma pauperis” to his actions. Howell apparently thinks that the phrase applies only to prisoner
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`cases. This is incorrect. Federal courts routinely apply the descriptor “in forma pauperis” to all
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`1“The statute actually uses the term ‘final decision,’ but a final decision is equivalent to a final
`‘judgment.’” Diaz-Reyes v. Fuentes-Ortiz, 471 F.3d 299, 300 n.3 (1st Cir. 2006).
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`2 Under the so-called “collateral order doctrine,” an interlocutory order may be appealed
`immediately if it “finally determine[s] claims of right separable from, and collateral to, rights
`asserted in the action, too important to be denied review and too independent of the cause itself
`to require that appellate consideration be deferred until the whole case is adjudicated.”
`Asociación de Subscripción Conjunta Del Seguro De Responsabilidad Obligatorio v. Flores
`Galarza, 479 F.3d 63, 75 (1st Cir. 2007) (quoting Espinal-Dominguez v. Puerto Rico, 352 F.3d
`490, 495 (1st Cir. 2003)). Certain interlocutory orders are also immediately appealable under
`28 U.S.C. § 1292(a)-(b). However, neither the “collateral order doctrine” nor 28 U.S.C. § 1292
`is applicable to the orders that Howell is appealing.
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`3 In the event the First Circuit finds this Court does not have jurisdiction of the action pending
`adjudication of Howell’s appeal, this order serves as a notice to the appellate court of the Court’s
`anticipated disposition of the action upon remand.
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`3
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`Case 1:21-cv-11979-ADB Document 49 Filed 07/18/22 Page 4 of 11
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`litigants (prisoner or non-prisoner) who are proceeding without prepayment of the filing fee. For
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`non-prisoner plaintiffs who are allowed to proceed in forma pauperis (i.e., without prepayment
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`of the filing fee), the $350 statutory and $52 administrative filing fees, see 28 U.S.C. §§ 1914(a),
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`(b) are waived. In contrast, plaintiff prisoners who are allowed to proceed in forma pauperis
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`(i.e., without prepayment of the filing fee), must pay the $350 statutory filing fee over time. See
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`28 U.S.C. § 1915(b).4
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`Where a plaintiff does not pay the filing fee at the commencement of the action,
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`summonses do not issue until the filing fee is resolved. Where a litigant is permitted to proceed
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`without prepayment of the filing fee, summonses do not issue until the Court conducts a
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`preliminary review to determine whether the defendants should be required to respond to the
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`complaint. See 28 U.S.C. § 1915(e)(2). If the Court finds that the complaint merits a response
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`from the defendants, the Court orders that summonses issue. Unless and until summonses issue,
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`a defendant does not have any obligation to waive service of summonses or to respond to the
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`complaint. The service period proscribed by Fed. R. Civ. P. 4(m) is tolled until the Court screens
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`a plaintiff’s in forma pauperis complaint and authorizes service of process. See Scott v.
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`Maryland State Dep’t of Labor, 673 Fed. App’x 299, 304 (4th Cir. 2016) (per curiam). Further,
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`4 It may be that Howell’s misunderstanding of the scope of cases to which the term “in forma
`pauperis” applies stems from a clerical error in the relevant statute. 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 such
`prisoner possesses.” 28 U.S.C. § 1915(a)(1) (emphasis added). Despite the statute’s use of the
`phrase “such prisoner,” the affidavit requirement applies to all persons requesting leave to
`proceed in forma pauperis. See Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 n.1 (11th
`Cir. 2004) (per curiam); Haynes v. Scott, 116 F.3d 137, 139-40 (5th Cir. 1997). The use of the
`word “prisoner” in 28 U.S.C. 1915(a)(1) appears to be a typographical error. See In re Perry v.
`Secretary of Hous. & Urban Dev., 223 B.R. 167, 169 n.2 (8th Cir. 1998); Leonard v. Lacy, 88
`F.3d 181, 183 (2d Cir. 1996); 1 James Wm. Moore, et al., Moore’s Federal Practice § 4.40[1] (3d
`ed. 2000).
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`4
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`even when summonses have issued, entry of default is not appropriate unless (1) a defendant was
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`properly served with a summons or a defendant has waived service of the summons; and (2) the
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`defendant has failed to respond to the complaint in the response period prescribed by the
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`summons or the waiver.
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`III. Review of the Amended Complaint
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`Because the Court has granted Howell’s motions for leave to proceed without
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`prepayment of the filing fee (i.e., his motions for leave to proceed in forma pauperis), his
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`amended complaint is subject to review by the Court prior to any issuance of summonses. The
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`Court has statutory authority to dismiss the complaint (or amended complaint) of any litigant
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`proceeding in forma pauperis if the pleading is malicious, frivolous, fails to state a claim upon
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`which relief may be granted, or seeks monetary relief against a defendant who is immune from
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`such relief. See 28 U.S.C. § 1915(e)(2). In conducting this review, the Court liberally construes
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`Howell’s amended complaint because he is proceeding pro se. See Haines v. Kerner, 404 U.S.
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`519, 520-21 (1972).
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`The overall themes in Howell’s amended complaint are that the defendants thwarted his
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`efforts to earn money from songs that he composed, that he was subject to illegal surveillance
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`and hacking of electronic devices, that government agencies failed to investigate his complaints
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`of wrongdoing, and that he did not receive adequate assistance to establish a business or find
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`adequate housing. He seeks a total of $10,000,000 in damages. Upon review of the pleading,
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`the Court concludes that the amended complaint fails to state a claim upon which relief can be
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`granted and that it is without jurisdiction to adjudicate some claims.
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`5
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`A.
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`Federal Agencies
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`Howell names three federal agencies as defendants: the United States Department of
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`Justice (“DOJ”), the Internal Revenue Service (“IRS”), and the United States Postal Service
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`(“USPS”).
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`Howell’s theory of liability for the DOJ and IRS is as follows:
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`The department of justice and IRS, failed to provide my request for my work
`history on numerous occasions so that I may investigate into the matter of my
`childhood employment as a rapper of the city of Boston performing at the strand
`theater, performing at city hall and performing at the Hyde park municipal
`building. Not providing me my work experience denied me information
`pertaining to who were affiliated with individuals in the music industry who
`sponsored the shows leading to targeting me from 1993-1994 where there was a
`continuous theft of my intellectual properties. In 1993 I did shows with Public
`enemy and 19941 did shows with REDMAN and the illegal implantation of
`device left me to be targeted amongst the music industry from that period. As
`well as denied me the request for record of my addresses, schools and medical
`insurance records from Maine to Florida, so that I may know who I was targeted
`from in the music industry that may have taken some of my intellectual trial
`properties from 1993-2022.
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`Am. Compl. ¶ 33 (as in original).
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`Regarding the United States Postal Service, Howell alleges that the agency “obstructed
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`[his] mailing parcel and regular mail and denied [him] [his] rights to postage stamp date which
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`[he] had to re-mail in order to secure [his] copyrights which denied [him] of due process of the
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`1st amendment and 14 amendments of the United States Constitution.” Id. ¶ 31.
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`Howell invokes 42 U.S.C. §§ 1981, 1982, 1983, 1985, 2000a-6, 2000d-1 and the First
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`and Fourteenth Amendments as the basis of the federal defendants’ liability for their alleged
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`misconduct.
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`The doctrine of sovereign immunity precludes Howell from pursing his claims against the
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`DOJ, IRS, and USPS in this Court. The United States (including its various branches,
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`departments, and agencies) enjoys immunity from suit—regardless of the nature of a claim—
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`except in those instances in which it has expressly consented to be sued. See FDIC v. Meyer,
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`510 U.S. 471, 475 (1994). A waiver of sovereign immunity must be expressly and
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`unequivocally found in the statutory text and cannot be implied. See Lane v. Pena, 518 U.S.
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`187, 192 (1996). Here, Howell has not identified any claim for which the United States has
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`consented to be sued for damages.5 Thus, the Court does not have any jurisdiction over
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`Howell’s claims against the United States.
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`B.
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`State Agencies
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`Howell identifies the Massachusetts Attorney General (“Massachusetts AG”) and the
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`Massachusetts Department of Youth Services (“MADYS”) as defendants. Regarding the
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`Massachusetts AG, Howell asserts that this defendant denied him his rights under the Fourteenth
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`Amendment by denying his request for victim compensation, failing to investigate his allegations
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`of wrongdoing, and not providing him funds to relocate to a secure location.
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`Howell makes the following allegations against MADYS:
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`The department of Youth services did not provide me information pertaining to
`my juvenile detainment in march 1994-April 1994 of illegal incarceration a
`various adult prisons and state hospital overcrowded stays where I was illegal
`implanted with BCI, BMI, RFID at various jurisdictions outside Boston violating
`my constitutional rights to access law library, attorney-client privilege, as well as
`lack of knowledge of what officers cared over me affiliated with individuals in the
`music industry responsible for theft of my intellectual risk properties. In 1993 I
`did shows with Public enemy and 1994 I did shows with RED-man and the illegal
`implantation of device left me to be targeted amongst the music industry from that
`period.
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`5 Under the doctrine enunciated in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), a
`plaintiff may “pursue constitutional claims against federal officials, in their individual capacities,
`for actions taken under color of federal law,” “[b]ut the availability of that doctrine does not
`override bedrock principles of sovereign immunity so as to permit suits against the United States,
`its agencies, or federal officers sued in their official capacities.” McCloskey v. Mueller, 446 F.3d
`262, 271-72 (1st Cir. 2006) (emphasis removed).
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`Am. Compl. ¶ 34 (as in original). Howell claims that this alleged misconduct is in violation of
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`42 U.S.C. §§ 1981, 1983, 1985, and the Fourteenth Amendment.
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`As with Howell’s claims against the United States, the Court does not have jurisdiction to
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`adjudicate his claims against the Massachusetts AG and MADYS because of their immunity
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`from suit in federal court. The Eleventh Amendment of the United States Constitution generally
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`is recognized as a bar to suits in federal courts against a state, state officials in their official
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`capacities, and state departments and agencies, unless the state has consented to suit or Congress
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`has overridden the state’s immunity. See Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429
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`(1997); Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985); Pennhurst State Sch. & Hosp. v.
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`Halderman, 465 U.S. 89, 101-02 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per
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`curiam); see also Hudson Sav. Bank v. Austin, 479 F.3d 102, 105-06 (1st Cir. 2007) (“The right
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`of a state to litigate a private party’s claims against it in its own courts is constitutionally assured.
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`In the absence of special circumstances — consent, waiver, and congressional override are
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`paradigmatic examples — the Eleventh Amendment prohibits the exercise of federal judicial
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`power over ‘any suit in law or equity, commenced or prosecuted against one of the United States
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`by Citizens of another State.’” (quoting U.S. Const. amend. XI.))
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`Here, the Court cannot discern any claim for relief against the Massachusetts AG or
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`MADYS for which the Commonwealth of Massachusetts has waived its immunity or Congress
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`has overridden it.6
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`6 Moreover, “neither a State nor its officials acting in their official capacities are ‘persons’ under
`[42 U.S.C.] § 1983,” the statute under which a person may bring a lawsuit against a person
`acting under the color of state law who violated the federal rights of the plaintiff. Will v.
`Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).
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`C.
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`Community Teamwork
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`Howell alleges the following regarding Community Teamwork:
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`The community teamwork denied funds for small business even-though I
`submitted application and did not allow me the process due to obtain federally
`funded small business start up cost. I submitted my ideas to them about my
`business and they never allowed me to finish the process and denied me due
`process which I sent appeal even though I never got a decision nor notice of a
`decision.
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`Am. Compl. ¶ 36 (as in original). Howell represents that his claim against Community
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`Teamwork arises under the Fourteenth Amendment and 42 U.S.C. § 1985.
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`Howell’s factual allegations against Community Teamwork fail to state a claim upon
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`which relief may be granted. The Fourteenth Amendment applies to government action, and
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`Howell has suggested that Community Teamwork is an agency of the local, state, or federal
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`government. Indeed, in a 2008 decision the Appeals Court of Massachusetts referred to
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`Community Teamwork as “a nonprofit organization whose mission it is to help indigent people
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`become self-sufficient” which receives “significant funding” from a state agency. Weber v.
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`Community Teamwork, Inc., 72 Mass App. Ct. 1113 (Table), 2008 WL 3342995, at *1 n.6
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`(2008).
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`In addition, 42 U.S.C. § 1985 is factually inapplicable to Howell’s allegations against
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`Community Teamwork. This statute prohibits persons from conspiring to prevent a person from
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`holding public office, interfering with an officer in the discharge of his or her duties, intimidating
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`parties to a court action, witnesses, or jurors, interfering with the due course of justice, and
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`conspiring to prevent persons of their right to equal protection.
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`Finally, the Court cannot identify any other cause of action that Howell could assert
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`against Community Teamwork under the facts alleged.
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`D.
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`City of Boston
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`Howell claims that the City of Boston violated his rights under the 42 U.S.C. §§ 1981,
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`1982, 1983, 1985, 5 U.S.C. § 552, 552a, and the First, Fourth, and Fourteenth Amendments in
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`the following manner:
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`The city of Boston violated my rights to privacy by connecting me to BCI, BMI,
`CBT, RFID device which illegally monitored my movements or knew of someone
`who was doing so and neglected to prohibit illegal communications upon me and
`the illegal college toon of data from me. (Boston police Report 95-0121-115,
`district E-5), also neglecting to provide me request for my performance history at
`the strand theater, city hall and Hyde park municipal shows operated by the city
`of Boston.
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`Am. Compl. ¶ 32 (as in original).
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`These allegations do not a state a cognizable claim against the City of Boston. To state a
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`claim for relief, a complaint must include “a short and plain statement of the claim showing that
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`the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The complaint must “contain sufficient
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`factual matter, accepted as true” to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S.
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`662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that
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`allows the court to draw the reasonable inference that the defendant is liable for the misconduct
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`alleged.” Id. The plausibility standard is not as onerous as a “‘probability requirement,’ but it
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`asks for more than a sheer possibility that a defendant has acted unlawfully. Id. (quoting Bell
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`Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
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`As pled, Howell’s allegation that the City of Boston (or someone known to the City of
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`Boston) monitored his movements with sophisticated technology7 falls short of the plausibility
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`mark. In addition, the City of Boston’s alleged failure to provide Howell with records of his
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`7 Although not critical to Court’s disposition of the case, the Court assumes that BCI refers to
`Brain Computer Interface, BMI refers to Brain Machine Interface, and RFID refers to Radio
`Frequency Identification.
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`10
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`performances at venues operated by the City of Boston do not give rise to a federal cause of
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`action.
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`E. Drake and Kanye West
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`Howell claims that Drake and Kanye West violated his rights under the Fourth
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`Amendment by engaged in the following alleged misconduct:
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`Aubrey Graham (Drake) and Kanye West used intellectual properties without
`permission and did commit theft, there companies were notified not to use and
`specifically I reported to the department of justice that drake used my property in
`May 2019 in federal complaint Curtis Howell V. Emerge in march 2021, then this
`complaint relating to theft of property on certified lover boy and Kanye west
`Donde 2.
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`Am. Compl. ¶ 35 (as in original).
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`These allegations fail to state claim upon which relief may be granted. As a threshold
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`matter, the Fourth Amendment only prohibits certain conduct by the government. It does not
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`apply to the conduct of private persons or entities, including well-known artists. In addition,
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`Howell’s claim that Drake and Kayne West stole Howell’s music compositions is not plausible
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`under the facts alleged.
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`IV. Conclusion
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`For the reasons set forth above, the Court DENIES Howell’s pending motions [ECF Nos.
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`32, 33, 34] and order that this action be DISMISSED.
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`IT IS SO ORDERED.
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` 7/18/2022
`DATE
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` /s/ Allison D. Burroughs
`UNITED STATES DISTRICT JUDGE
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`11
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