United States District Court, D. Rhode Island
VICTOR A. TAVARES
RHODE ISLAND SUPERIOR COURT, et al.
REPORT AND RECOMMENDATION
LINCOLN D. ALMOND, UNITED STATES MAGISTRATE JUDGE
se Plaintiff Victor A. Tavares, a prisoner at the Adult
Correctional Institutions (“ACI”), has brought
claims pursuant to 31 U.S.C. § 3729 against the Rhode
Island Superior Court, Rhode Island Office of the Attorney
General and Rhode Island Public Defenders' Office.
Pending before me for determination is Plaintiff's
Application to Proceed In Forma Pauperis (“IFP”)
(ECF Doc. No. 2) without being required to prepay costs or
fees, including the $400.00 civil case filing fee pursuant to
28 U.S.C. § 1915. Based on my review of the IFP
Application, Plaintiff has satisfied the requirements of 28
U.S.C. § 1915(a)(1); accordingly, if the Complaint
survives screening, I will grant the IFP Motion and calculate
the initial filing fee that must be paid before the case may
proceed. However, because of the IFP Application, this case
is subject to preliminary screening. Pursuant to 28 U.S.C.
§ 1915(e)(2), this Court is required by statute to
review the Plaintiff's Complaint sua sponte and to
dismiss this suit if it is “frivolous or malicious,
” “fails to state a claim on which relief may be
granted” or “seeks monetary relief against a
defendant who is immune from such relief.” For the
reasons discussed below, I recommend that Plaintiff's
Complaint be DISMISSED because it fails to state a claim upon
which relief can be granted pursuant to 28 U.S.C. §
1915(e)(2)(B). I further recommend summary dismissal without
leave to amend because the Complaint is “patently
meritless and beyond all hope of redemption.” Brown
v. Rhode Island, 511 Fed.Appx. 4, 5 (1st Cir.
is an inmate at the ACI in Cranston, Rhode Island. His
pro se Complaint filed on May 21, 2019 is the
seventh pro se action Plaintiff has filed within a
roughly eighteen-month period. Plaintiff filed this Complaint
pursuant to the False Claims Act (“FCA”) 31
U.S.C. § 3729, et seq., which establishes
liability for one who “knowingly presents, or causes to
be presented, a false or fraudulent claim for payment or
approval” to the United States or one of its employees
or contractors. In this iteration, Plaintiff asserts that the
Defendants are engaged in a conspiracy which allows state
court defendants to be “tried or plead without any
subject-matter jurisdiction.” (ECF Doc. No. 1 at p. 3).
The Complaint alleges that the Defendants “use the lack
of subject-matter jurisdiction to secure convictions, to
later make claims that the prosecutions and convictions are
lawful. All the while appropriating funding from the Federal
and State Government.” Id. He argues
“[t]he purpose is, and always has been, the unjust
enrichment of the Defendants.” Id.
1915 of Title 28 requires a federal court to dismiss an
action brought thereunder if the court determines that the
action is frivolous, fails to state a claim or seeks damages
from a defendant with immunity. 28 U.S.C. §
1915(e)(2)(B). The standard for dismissal of an action taken
IFP is identical to the standard for dismissal on a motion to
dismiss brought under Fed.R.Civ.P. 12(b)(6). See Fridman
v. City of N.Y., 195 F.Supp.2d 534, 538 (S.D.N.Y. 2002).
In other words, the court “should not grant the motion
unless it appears to a certainty that the plaintiff would be
unable to recover under any set of facts.” Roma
Constr. Co. v. aRusso, 96 F.3d 566, 569 (1st
Cir. 1996). Section 1915 also requires dismissal if the court
is satisfied that the action is “frivolous.” 28
U.S.C. § 1915(e)(2)(B)(I). A claim “is frivolous
where it lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 325
recommend that Plaintiff's Complaint be summarily
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). In
making this recommendation, I have taken all of the
allegations in Plaintiff's Complaint as true and have
drawn all reasonable inferences in his favor. Estelle v.
Gamble, 429 U.S. 97 (1976). In addition, I have
liberally reviewed Plaintiff's allegations and legal
claims since they have been put forth by a pro se
litigant. See Haines v. Kerner, 404 U.S. 519,
520-521 (1972). However, even applying these liberal
standards of review to Plaintiff's Complaint, dismissal
purported claims under the FCA fail for at least two reasons.
First, the Complaint fails to allege the factual elements
necessary to state a claim under the FCA. “A proper
False Claims Act claim has three elements: (1) the defendant
presented a claim for payment or approval to the government,
(2) the claim was ‘false or fraudulent,' and (3)
the defendant acted knowing that the claim was false.”
U.S. ex rel. Folliard v. Govplace, 930 F.Supp.2d
123, 127 (D.D.C. 2013) (internal citations omitted).
Plaintiff does not address any of these elements, and nothing
in the Complaint can be construed as satisfying them. Second,
and critically for Plaintiff's FCA claims, a relator in a
qui tam action may not proceed pro se. See
Nasuti v. Savage Farms Inc., No. 14-1362, 2015 WL
9598315 at *1 (1stCir. Mar 12, 2015); U.S. ex
rel. Rockefeller v. Westinghouse Elec. Co., 274
F.Supp.2d 10, 12 (D.D.C.2003) (holding that “[t]he need
for adequate legal representation on behalf of the United
States is obviously essential”). As Plaintiff makes
clear, he is proceeding ex relatione seeking to proceed as an
“original source” “on behalf of the United
States and The State of Rhode Island” and he
“seeks the awards authorized under 31 U.S.C.S.
3730(d)…” (ECF Doc. No. 1 at p. 1-2).
Plaintiff's FCA claims therefore fail to state a claim
upon which relief may be granted because he is impermissibly
attempting to proceed without counsel. Ananiev v.
Freitas, 37 F.Supp.3d 297, 306-307 (D.D.C.), aff'd,
587 Fed.Appx. 661 (D.C. Cir. 2014).
foregoing reasons, I recommend that Plaintiff's Complaint
(ECF Doc. No. 1) be DISMISSED and that his Application to
Proceed IFP (ECF Doc. No. 2) be DENIED.
objection to this Report and Recommendation must be specific
and must be filed with the Clerk of the Court within fourteen
days of its receipt. See Fed.R.Civ.P. 72(b); LR Cv
72. Failure to file specific objections in a timely manner
constitutes waiver of the right to review by the District
Court and the right to appeal the District Court's
decision. See United States v. Valencia-Copete, 792
F.2d 4, 6 (1st Cir. 1986); Park Motor Mart,
Inc. v. Ford Motor Co., 616 F.2d 603, 605
(1st Cir. 1980).