McCarthy v. Sweeney et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 25-12666-RGS
BRIAN MCCARTHY
v.
KATHRYN SWEENEY, et al.
MEMORANDUM AND ORDER
November 18, 2025
STEARNS, D.J.
Pro se litigant John McCarthy has filed a complaint in which he alleges
wrongdoing by attorneys, a legal assistant, his former partner, a court
reporter, and a state judge in an ongoing child custody dispute. 	According
to McCarthy, the trial court issued a judgment adverse to him, which is now
on appeal. 	McCarthy has also filed a motion for leave to proceed in forma
pauperis. For the reasons set forth below, the court will grant the motion for
leave to proceed in forma pauperis and dismiss this action.
Motion for Leave to Proceed in Forma Pauperis
Upon review of McCarthy’s for leave to proceed in forma pauperis, the
court concludes that he has adequately shown that he is unable to prepay the
filing fee. Accordingly, the motion is GRANTED.
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Review of the Complaint
I. 	Court’s Authority to Review the Complaint
Because McCarthy is proceeding in forma pauperis, his complaint is
subject to screening under 28 U.S.C. § 1915(e)(2). 	This statute authorizes
federal courts to dismiss actions in which a plaintiff is proceeding in forma
pauperis if the action is malicious, frivolous, fails to state a claim upon which
relief may be granted, or seeks monetary relief against a defendant who is
immune from such relief. See 28 U.S.C. § 1915(e)(2).
In addition, the court must consider whether it has jurisdiction to
adjudicate McCarthy’s claims, see Federated Mut. Ins. Co. v. Peterson’s Oil
Serv., Inc., 155 F.4th 1, 5-6 (1st Cir. 2025), and “if the court determines at
any time that it lacks subject-matter jurisdiction, the court must dismiss the
action,” Fed. R. Civ. P. 12(h)(3). The scope of a federal district court’s subject
matter jurisdiction is defined by Congress. 	Federal district courts have
original jurisdiction over claims arising under federal law, see 28 U.S.C. §
1331, and between parties that are “citizens of” (or, in other words, domiciled
in) different states and the amount in controversy exceeds $75,000, see 28
U.S.C. § 1332. Where a litigant sets forth a claim under § 1331 or § 1332, the
court may, in its discretion, exercise supplementary jurisdiction over any
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other related claims that do not fall within the jurisdictional grants of § 1331
or § 1332. See 28 U.S.C. § 1367(a).
In conducting this review, the court liberally construes McCarthy’s
complaint because he is proceeding pro se. 	See Haines v. Kerner, 404 U.S.
519, 520-21 (1972).
II. 	McCarthy’s Complaint
The court writes for the parties and assumes the reader’s familiarity
with the complaint.
McCarthy brings this action against: state court Judge Jennifer Allen;
Marcie Lombard, the mother of the child whose custody is the subject of the
state court proceeding; Deborah Katz, Peri Kutchin, and Katz Legal Group,
LLC, attorneys for the mother and their law firm; Lindsay Alberico, a legal
assistant at Katz Legal Group, LLC; Kathryn Sweeney, individually and d/b/a
Gabriel & Sweeney Court Report, who was the court reporter for McCarthy’s
deposition. 	McCarthy’s claims focus on three aspects of the trial court
proceedings: 	(1) Lombard’s 	unlawful 	access 	of 	McCarthy’s 	home 	and
firearm, evidence of which Judge Allen allowed Lombard’s attorneys to
introduce in court; (2) Judge Allen’s refusal to admit certain exhibits
McCarthy filed (at 11:59 pm on the day the filing was due) unless Lombard’s
attorneys consented to the filing, and the attorneys’ refusal to give such
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consent; 	and 	(3) 	the 	attorneys’ 	introduction 	of 	McCarthy’s 	deposition
testimony into evidence, even though (i) the transcription did not include a
segment of the deposition in which Katz berated Plaintiff; (ii) Sweeney
certified the transcript as true and accurate, even though she had not allowed
McCarthy to review and correct the transcript without purchasing a copy of
the document.
McCarthy 	invokes 	this 	court’s 	federal 	question 	subject 	matter
jurisdiction under § 1331. The complaint is in twenty-four counts. In counts
I, II, VIII, IX, X, XII, XIII, XIV, XVI, XXIII, XXIV, McCarthy brings claims
under 42 U.S.C. § 1983 (“§ 1983”). 	In Count XV, McCarthy brings a claim
under § 1983 and 42 U.S.C. § 1985(2) (“§ 1985(2)”). The twelve other counts
are under state law.
III. 	Claims Arising Under Federal Law
To state a claim upon which relief may be granted, a complaint must
set forth “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). The
plaintiff’s obligation to provide the grounds of his claim “requires more than
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labels and conclusions.” Twombly, 550 U.S. at 555. A court is not “bound to
accept as true a legal conclusion couched as a factual allegation,” and
“[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Id. (quoting in part Papasan v. Allain, 478 U.S. 265, 286
(1986)); see also Iqbal, 556 U.S. at 678) (“Threadbare recitals of a cause
action, supported by mere conclusory statements, do not suffice.”).
Here, McCarthy’s claims under federal law --§ 1983 and § 1985(2)--
fail to state a claim upon which relief may be granted.
A. 	Section 1983 Claims
“Section 1983 provides a cause of action against any person who
deprives an individual of federally guaranteed rights ‘under color’ of state
law.” 	Filarsky v. Delia, 566 U.S. 377, 383 (2012) (citing 42 U.S.C. § 1983).
“Anyone whose conduct is ‘fairly attributable to the State’ can be sued as a
state actor under § 1983.” Id. (citing Lugar v. Edmondson Oil Co., 457 U.S.
922, 937 (1982)).
1. 	Judge Allen
McCarthy has failed to state a claim upon which relief may be granted
against Judge Allen. 	Although it does not appear that McCarthy seeks
monetary damages from Judge Allen, the court notes that Judge Allen would
have judicial immunity vis-à-vis any claims for damages. See Pierson v. Ray,
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386 U.S. 547, 554 (1967) (“Judges are immune “from liability for damages
for acts committed within their judicial jurisdiction . . . even when the judge
is accused of acting maliciously and corruptly.”).
In addition, injunctive relief against Judge Allen is not available.
Section 1983 provides: “[I]n any action brought against a judicial officer for
an act or omission taken in such officer’s judicial capacity, injunctive relief
shall not be granted unless a declaratory decree was violated or declaratory
relief was unavailable.” 42 U.S.C. § 1983. Neither circumstance exists here.
McCarthy does claim that “there is no mechanism in state court to declare
[the trial court’s] practices unconstitutional,” Compl. ¶ 16; see also id. ¶ 23
(“The Massachusetts Probate and Family Court provides no mechanism for
declaratory 	relief 	against 	its 	own 	unconstitutional 	practices. 	Plaintiff
attempted to raise these issues through objections and multiple post-
judgment motions, but relief was denied.”). But McCarthy cannot plausibly
plead that “declaratory relief was unavailable” as long as he can “appeal any
decision or challenge it in a petition for an extraordinary writ.” 	McCone v.
Thorpe, 828 Fed. App’x 698 (11th Cir. 2020) (Mem.); see also Grove v.
Groome, 817 F. App’x 551, 555 (10th Cir. 2020) (stating that, where the
plaintiff “had alleged the unavailability of declaratory relief by unsuccessfully
urging the state court to address his appeal on the merits,” the plaintiff had
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“not shown declaratory relief was unavailable; he ha[d] shown only that he
did not prevail,” and “[m]ore [was] required to show the unavailability of
declaratory relief”). 	Here, McCarthy has appealed Judge Allen’s judgment
against him, and he may raise in the appeal the very issues for which he seeks
declaratory relief in this action.
2. 	Private Defendants
McCarthy has not plausibly pled that conduct of the other defendants—
all of whom are private parties—can be fairly attributable to the state.
McCarthy 	characterizes 	the 	conduct 	of 	Judge 	Allen 	and 	the 	private
defendants as “joint action.” For example, McCarthy alleges that Lombard’s
unlawful access of his personal information was “state action” because Judge
Allen allowed the unlawfully obtained information to be admitting into
evidence. 	See, e.g., Comp. ¶ 104 (“By admitting and ratifying the use of
stolen text messages, Defendants acted jointly under color of law [and]
validated and entrance an unreasonable search and seizure of Plaintiff’s
private electronic data.”); id. ¶ 123 (“By converting private misconduct into
admissible state-endorsed evidence, Defendants acted jointly with the court
in carrying out an unconstitutional search and seizure.”).
With regard to Judge Allen allowing the motion in limine of the
attorney defendants to exclude to exclude the documents McCarthy filed at
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11:59 p.m., McCarthy alleges that the private defendants “acted jointly with
the court under color of law by initiating, procuring, and ratifying exclusion
through their Motion in Limine and arguments adopted by Judge Allen.” Id.
¶ 187. With respect to the use of false or incomplete deposition testimony,
McCarthy alleges: “Defendant Sweeney’s unlawful demand for payment and
false certification of an unreviewed transcript became state action once the
transcript was admitted and relied on by the court. 	By introducing and
exploiting the tainted transcript at trial, Katz and her firm acted jointly with
sweeney and the tribunal in denying Plaintiff his Rule 30(e) rights.” 	Id.
¶ 232; see also id. ¶ 268 (“By demanding unlawful payment, halting the
record, and certifying a false transcript, Defendants engaged in arbitrary and
abusive conduct. 	This conduct because state action when the court ratified
and relied on the transcript in adjudicating custody. Their joint participation
with the tribunal deprived Plaintiff of substantive due process.”).
Under McCarthy’s theory of “joint action” with the state, any attorney
whose motion or argument was allowed or sustained by the court may be
attributable to the state for purposes § 1983. 	This theory of state action is
untenable. In addition, any conclusory allegations of an agreement between
Judge Allen and the private defendants to work against McCarthy do not
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sufficient plead that the private defendants were acting under color of state
law.
B. 	Section 1985(2)
The second part of § 1985(2) prohibits conspiracies to obstruct “the due
course of justice in any State or Territory, with intent to deny to any citizen
the equal protection of the laws, or to injure him or his property for lawfully
enforcing, or attempting to enforce, the right of any person, or class of
persons, to the equal protection of the laws.” 42 U.S.C. § 1985(2). “Because
that language is ‘directed toward the equal protection of the laws,’ a plaintiff
must allege a ‘class-based, invidiously discriminatory animus’ to state a
plausible § 1985(2) claim.” 	Knowlton v. Shaw, 704 F.3d 1, 11-12 (1st Cir.
2013) (quoting Hahn v. Sargent, 523 F.2d 461, 469 (1st Cir. 1975)).
Here, 	McCarthy 	alleges 	that 	private 	defendants 	are 	liable 	under
§ 1985(2) because they engaged in “a conspiracy to obstruct justice and
deprive Plaintiff of fair trial rights” by omitting certain parts of McCarthy’s
deposition from the transcript and not permitting him to correct the
transcript. 	Compl. ¶ 260. 	The Complaint fails to state a § 1985(2) claim
because “it fails to allege any racial, or otherwise class-based, invidiously
discriminatory animus underlying the [defendants’] actions.” 	Knowlton,
704 F.3d at 12.
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IV. 	Dismissal of Action
As set forth above, all of McCarthy’s claims arising under federal law
fail to state claim upon which relief may be granted, and there is no
indication 	that 	the 	deficiencies 	in 	these 	claims 	could 	be 	cured 	by
amendment. 	Therefore, the court will dismiss these claims. 	With the
dismissal of claims arising under federal law and the absence of any
jurisdiction under § 1332, there no longer remains a claim in this action over
which this court may exercise original subject matter jurisdiction. The court
declines to exercise supplemental jurisdiction over the state law claims. See
28 U.S.C. § 1367(c)(3).
ORDER
In accordance with the foregoing, the motion for leave to proceed in
forma pauperis is GRANTED and this action is DISMISSED. The dismissal
is without prejudice as to the state law claims.
SO ORDERED.
/s/ Richard G. Stearns__________
UNITED STATES DISTRICT JUDGE
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