Jelen v. Viscovich

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS CIVIL ACTION NO. 19-10053-RGS SEAN E. JELEN v. WILLIAM A. VISOVICH, JAIME BOWER, SUSAN JELEN, and QUEENS COUNTY CLERK MEMORANDUM AND ORDER OF DISMISSAL February 1, 2019 For the reasons stated below, the court denies plaintiff’s motions for temporary restraining order and to proceed in forma pauperis and the case is dismissed on the grounds of Younger abstention. RELEVANT BACKGROUND Plaintiff Sean E. Jelen, an inmate now in custody at FMC Devens, initiated this action on January 9, 2019, by filing a complaint against a New York judge (William Viscovich), a New York court-appointed attorney (Jaime Bower), Jelen’s spouse who resides in Pennsylvania (Susan Jelen), and an unnamed clerk of Queens County, New York. Jelen contends that this Massachusetts federal court has both federal question jurisdiction as well as diversity jurisdiction. See Docket No. 1. With his complaint, Jelen filed motions to proceed in forma pauperis and for preliminary injunctive relief. See Docket Nos. 2, 3. On January 15, 2019, this court denied Jelen’s motion for preliminary injunction and noted that his complaint is likely subject to dismissal for many of the same reasons outlined in the dismissal of Jelen, et al. v. Viscovich, et al., No. 18-2814 (E.D.N.Y Jun. 1, 2018), appeal filed, No. 18- 1809 (2d Cir. Jun. 18, 2018). See Docket No. 6. The court also denied Jelen’s motion for leave to proceed in forma pauperis because it was not signed under the pains and penalties of perjury and was not accompanied by a certified copy of his prison account statement as required by 28 U.S.C. §§ 1915 (a)(1), (2). Id. The Order granted Jelen 28 days to file a renewed motion accompanied by his prison account statement and explicitly advised plaintiff that a failure “to comply with these directives may result in the dismissal of this action.” Id. Now before the court are Jelen’s motion for temporary restraining order, renewed motion to proceed in forma pauperis and supplemental complaint. See Docket Nos. 7 - 9. DISCUSSION As an initial matter, the court notes that Jelen failed to submit a copy of his prison account statement, despite the statutory requirement that a prisoner plaintiff’s request to proceed without prepayment of the filing fee must be accompanied by “a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint . . . obtained from the appropriate official of each prison at which the prisoner is or was confined.” 28 U.S.C. § 1915 (a)(2). Because of this, his motion for leave to proceed in forma pauperis must be denied. Although it is a long-established principle that this court has the authority to sua sponte dismiss an action due to a plaintiff's failure to follow an order of the court, see Fed. R. Civ. P. 41(b), this action will not be dismissed based on Jelen’s failure either to provide a copy of his prison account statement as ordered by the court or an explanation as to why it has not been provided. As to the motion for temporary restraining order, Jelen again complains of the violation of his constitutional rights in a civil proceeding in New York State and now seeks to enjoin the sale of properties located in New York and Pennsylvania. See Docket No. 8. Although Jelen argues that the defendant New York judge “threatened to execute the sale of plaintiff’s homes, and other assets, unless plaintiff performs actions which he has no means of doing so, due to his incarceration,” id. at ¶ 6A, Jelen has not shown a reasonable likelihood of success on the merits. Presuming this court otherwise has jurisdiction, the court will abstain from exercising jurisdiction under Younger v. Harris, 401 U.S. 37, 46 (1971). A federal court must abstain from reaching the merits of a case over which it has jurisdiction “if (1) there is an ongoing state judicial proceeding involving the federal plaintiff that (2) implicates important state interests and (3) provides an adequate opportunity for the federal plaintiff to assert his claims.” Colonial Life & Accidental Ins. Co. v. Medley, 572 F.3d 22, 26 (1st Cir. 2009). When the three-part test is satisfied, the Younger doctrine “contemplates the outright dismissal of the federal suit, and the presentation of all claims, both state and federal, to the state courts.” Gibson v. Berryhill, 411 U.S. 564, 577 (1973). The “exceptions to Younger’s policy of abstention have been very narrowly construed by the [Supreme] Court.” Cobb v. Supreme Judicial Court of Massachusetts, 334 F.Supp.2d 50, 53 (D. Mass. 2004) (citing United Books, Inc. v. Conte, 739 F.2d 30, 34 (1st Cir. 1984). Despite Jelen’s argument to the contrary, this court finds that Jelen has an adequate opportunity to raise his federal claims in the state proceeding. As all of the requirements for Younger abstention are met without any applicable exceptions, abstention is mandatory. See Mass. Delivery Ass'n v. Coakley, 671 F.3d 33, 39 (1st Cir. 2012). ORDER For the foregoing reasons, it is hereby ORDERED 1. Plaintiff’s Motion for Temporary Restraining Order is DENIED; 2. Plaintiff’s Motion to proceed in forma pauperis is DENIED; and 3. This action is DISMISSED on the grounds of Younger abstention, and the Clerk is directed enter a separate Order of Dismissal. SO ORDERED. /s/ Richard G. Stearns UNITED STATES DISTRICT JUDGE