Herrera v. FL Municipal

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
EMILIO HERRERA,
Plaintiff,
v.
FL MUNICIPAL,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
CIVIL ACTION
NO. 25-40097-MRG
ORDER
March 18, 2026
GUZMAN, D.J.
Plaintiff Emilio Herrera, a resident of Massachusetts, initiated this action by filing a pro
se complaint. ECF 1. The complaint identifies the defendant as “municipal” with an address of
5750 Major Blvd. unit 100, Orlando, Florida 32819. 	ECF 1 at ¶ I(B). For the basis of
jurisdiction, Herrera checks the box for diversity jurisdiction. Id. at ¶ II. He also asserts federal
question jurisdiction under the Second Amendment to the United States Constitution. Id. at ¶
II(A). In the relief section of the complaint, he writes “monetize.” Id. at ¶ IV. 	There are no
factual allegations in the complaint, however, in the section of the civil cover sheet for
describing the cause of action, Herrera states “involuntarily revoked conceal carry without ssi
compensation (remote trial).” ECF 1-1 at ¶ VI (cause of action). Herrera provides a mailing
address in Leominster, Massachusetts, id. at ¶ I(c), and in the complaint, states that he is
“homeless.” ECF 1 at ¶ I(A). With the complaint, Herrera filed an unsigned affidavit of
indigency on a form used in the courts of the Commonwealth of Massachusetts. ECF 2.
Case 4:25-cv-40097-MRG Document 5 Filed 03/18/26 Page 1 of 4

2
The Court has an independent obligation to inquire, sua sponte, into its subject matter
jurisdiction. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.”); McCulloch v. Velez, 364 F.3d 1,
5 (1st Cir. 2004). In addition, federal courts possess certain “‘inherent powers,’ not conferred by
rule or statute, ‘to manage their own affairs so as to achieve the orderly and expeditious
disposition of cases.’” Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. 101, 107 (2017)
(quoting Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962)). Those powers include the
power to dismiss frivolous or malicious actions, regardless of the status of the filing fee. See
Mallard v. United States Dist. Ct., 490 U.S. 296, 307-308 (1989); Brockton Sav. Bank. v. Peat,
Marwick, Mitchell & Co., 771 F.2d 5, 11 n.5 (1st Cir. 1985). As used in this context, “frivolous”
does not refer to the subjective intent of a plaintiff. Axcella Building Realty Trust v. Thompson,
No. 23-40151-DHH, 2024 WL 474539, at n. 2 (D. Mass. Jan. 25, 2024). “Rather, in legal
parlance, a complaint is ‘frivolous’ if it ‘lacks an arguable basis either in law or in fact.’” Id.
(quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)).
When evaluating documents filed pro se, the Court is to construe these documents
liberally and in favor of the drafter. See Ayala Serrano v. Lebron Gonzalez, 909 F.2d 8, 15 (1st
Cir. 1990) (stating the rule that “pro se pleadings are to be liberally construed, in favor of the pro
se party”). As best can be gleaned from the submitted documents, Herrera seeks to challenge an
order by the Florida Department of Agriculture and Consumer Services, Division of Licensing,
revoking his permit for carrying a concealed weapon.1 Even with liberal construction, the
complaint is subject to dismissal.
1 An on-line search reveals that the Defendant’s address in the complaint is the address for the
Orlando Regional Office of the Florida Department of Agriculture and Consumer Services. See
https://www.fdacs.gov/Divisions-Offices/Licensing/Regional-Offices/Orlando-Regional-Office
(last visited 3-12-2026).
Case 4:25-cv-40097-MRG Document 5 Filed 03/18/26 Page 2 of 4

3
As an initial matter, Herrera’s complaint fails to present any factual allegations in support
of his claim for relief. In addition, Herrera cannot maintain a claim under 42 U.S.C. § 1983
against the defendant. To state a claim under § 1983, a plaintiff must assert that a “person”
acting under color of state law deprived him of rights, privileges, or immunities secured by the
Constitution or laws of the United States. See 42 U.S.C. § 1983. A state (including its agencies
and departments) is not a “person” within the meaning of Section 1983. See Will v. Michigan
Dep’t. of State Police, 491 U.S. 58, 71 (1989).
Although Herrera contends that this Court has jurisdiction based partly on diversity
jurisdiction, this Court does not have diversity jurisdiction under 28 U.S.C. § 1332(a). A suit
between a state (or state entities such as the defendant) and a citizen of another state is not a suit
between citizens of different states for purposes of diversity jurisdiction. See Moor v. Alameda,
411 U.S. 693, 717 (1973) (stating that there is no question that a State is not a citizen for
purposes of diversity jurisdiction); see also University of R.I. v. A.W. Chesterton Co., 2 F.3d
1200, 1203 (1st Cir. 1993) (an entity that is an extension of the state is not a citizen for purposes
of diversity). Here, Herrera cannot establish diversity jurisdiction because the defendant does not
fit within any of the categories set forth in Section 1332(a). See In re Fresenius
Granuflo/NaturaLyte Dialysate Prods. Liab. Litig., 76 F. Supp. 3d 268, 273 (D. Mass. 2015)
(noting that “as a matter of history, parties without any state citizenship, such as States, Indian
tribes, or Americans domiciled abroad, have been treated as ‘jurisdictional spoilers’ whose mere
presence in an action destroys complete diversity”). Thus, this Court does not have jurisdiction
over the instant action based on diversity.
Finally, venue is not proper in the District of Massachusetts. In the present context, the
term “venue” refers to “the geographic specification of the proper court or courts for the
litigation of a civil action that is within the subject-matter jurisdiction of the district courts.” 28
Case 4:25-cv-40097-MRG Document 5 Filed 03/18/26 Page 3 of 4

4
U.S.C. § 1390(a). Federal trial courts are divided geographically into districts, and the venue
statutes designate appropriate districts for each case. Under the general venue statute, venue is
proper in a judicial district in which the defendants reside or in which “a substantial part of the
events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(b). Because the
defendant in this action is located in Florida and the events giving rise to Herrera’s claim
occurred in Florida, venue does not exist in the District of Massachusetts.
Even with a generous reading of the complaint, it fails to state a claim upon which relief
can be granted. In light of the nature of the claims asserted, the Court finds that amendment
would be futile. Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 23 (1st Cir. 2014)
(explaining that sua sponte dismissal is appropriate only when it is crystal clear that the plaintiff
cannot prevail and that amending the complaint would be futile).
Accordingly, the Court hereby orders:
1. The motion for leave to proceed in forma pauperis (ECF 2) is DENIED.
2. This action is DISMISSED pursuant to the Court’s inherent authority.
So Ordered.
_/s/ Margaret R. Guzman___________
MARGARET R. GUZMAN
UNITED STATES DISTRICT JUDGE
Dated: March 18, 2026
Case 4:25-cv-40097-MRG Document 5 Filed 03/18/26 Page 4 of 4