Torres v. Winnell et al

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
GERARD TORRES, + 2 Children,
Plaintiff,
v.
ALEXIS WINNELL, Property Manager, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 25-11437-MJJ
MEMORANDUM AND ORDER
JOUN, D.J.
Gerard Torres (“Mr. Torres”), who is representing himself, brings this action concerning
his tenancy in Roslindale, Massachusetts. With his complaint, Mr. Torres filed a
motion for leave to proceed in forma pauperis. After commencing this action, Mr. Torres filed
exhibits to his complaint, a motion for a temporary restraining order, a statement of damages,
and a request for accommodations, and a motion to supplement. Upon review of Mr. Torres’s
flings, the Court DENIES without prejudice the motion for leave to proceed in forma pauperis,
DENIES the motion for a temporary restraining order, DENIES the request accommodations,
and DENIES the motion to supplement. The Court also directs Mr. Torres to file an amended
complaint if he wishes to proceed with this action.
I. 	Motion for Leave to Proceed in Forma Pauperis
Under the federal in forma pauperis statute, 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 [person] possesses [showing] that the person
is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). One does not have
Case 1:25-cv-11437-MJJ Document 12 Filed 01/05/26 Page 1 of 8

2
to be “absolutely destitute” to proceed in forma pauperis. Adkins v. E.I. DuPont de Nemours &
Co., 335 U.S. 331, 339 (1948). Rather, the litigant must show he cannot pay the filing fee “and
still be able to provide himself and dependents with the necessities of life.” Id. Leave to proceed
in forma pauperis is a privilege, not a right. See, e.g., Young v. Bowser, 843 Fed. App’x 341, 342
(D.C. Cir. 2021) (per curiam); Daker v. Jackson, 942 F.3d 1252, 1257 (11th Cir. 2019) (per
curiam); Bryant v. United States, 618 Fed. App’x 683, 685 (Fed. Cir. 2015) (per curiam).
In his motion for leave to proceed in forma pauperis, which Mr. Torres signed under
penalty of perjury, he indicates that, in the past year, he received income from disability or
worker’s compensation payments. However, Mr. Torres does not indicate the amount he
received and what he expects to receive in the future, although the directions to in forma
pauperis application require the litigant to provide this information. In addition, Mr. Torres did
not respond to any of the questions on the second page of the application. Because Mr. Torres
has not provided sufficient information concerning his financial circumstances, the Court cannot
determine whether he can pay the filing fee and still be able to afford the necessities of life for
himself and any dependents. Accordingly, the motion for leave to proceed in forma pauperis, is
DENIED without prejudice.
II. 	Lack of Subject Matter Jurisdiction
“Federal courts are courts of limited jurisdiction. They cannot act in the absence of subject
matter jurisdiction, and they have a sua sponte duty to confirm the existence of jurisdiction in the
face of apparent jurisdictional defects.” United States v. Univ. of Mass. Worcester, 812 F.3d 35,
44 (1st Cir. 2016). The Court has reviewed Mr. Torres’s complaint to determine whether it has
jurisdiction over this case. In conducting this review, the Court has liberally construed Mr. Torres’s
complaint because he is representing himself. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam).
Case 1:25-cv-11437-MJJ Document 12 Filed 01/05/26 Page 2 of 8

3
Federal district courts may exercise original jurisdiction over civil actions arising under
federal law, see 28 U.S.C. § 1331 (“§ 1331”), and over certain actions in which the parties are of
diverse “citizenship” and the case is worth more than $75,000, see 28 U.S.C. § 1332 (“§ 1332”).1
A. 	Federal Question Subject Matter Jurisdiction (§ 1331)
In his complaint, Mr. Torres invokes the Court’s federal question subject matter
jurisdiction, but he does not identify any federal statutes or provisions of the United States
Constitution that are at issue in this case. Compl. at 3. A case arises under federal law for purposes
of § 1331 if “a well-pleaded complaint establishes that federal law creates the cause of action or
that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of
federal law.” Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006) (quoting
Franchise Tax Bd. of Val. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 27-38
(1983)).
Mr. Torres’s complaint does not contain a well-pleaded claim arising under federal law.
Mr. Torres names as defendants two employees of the company managing the multi-unit property
where he resides and occupants of two other units of the property. Mr. Torres’ allegations in the
pleading concern harassment and defamation by another property resident and one of the
neighbor’s alleged false reports to management concerning him. Mr. Torres claims that he reached
out to management and his landlord concerning this matter because he feared for his safety and
that of his children. Mr. Torres further alleges that someone tampered with his car, but that he was
never given the opportunity to see video coverage of this misconduct.
1 If a plaintiff brings a claim over which the Court has jurisdiction over § 1331 or § 1332, the Court may,
in its discretion, exercise supplemental jurisdiction over related claims that do not fall with the Court’s
original jurisdiction. See 28 U.S.C. § 1367.
Case 1:25-cv-11437-MJJ Document 12 Filed 01/05/26 Page 3 of 8

4
On June 17, 2025, approximately three weeks after commencing this action, Mr. Torres
filed 119 pages of “Evidence to [his] claims.” ECF 3. These documents do not show that any aspect
of this action arises under federal law. They largely concern Mr. Torres alleged violations of the
housing association’s rules, primarily by allegedly working on his car on the property’s parking
lot or keeping his car on the parking lot when it was not in working condition in 2024 and 2025.
Although Mr. Torres refers to his “civil rights” in several emails to the unit owner, the alleged
misconduct of the defendants does not implicate any rights created by federal law.
On August 15, 2025, Mr. Torres filed a motion for a temporary restraining order. ECF 7.
Mr. Torres states therein that on August 13, 2025, he received a notice from the management
company to quit the property within seven days. Mr. Torres claims that “[t]he 7-Day Notice is
based on false allegations and is intended to retaliate against plaintiff for asserting his rights under
the Fair Housing Act, Americans with Disabilities Act, and Section 504 of the Rehabilitation Act.”
Id. at 2 (capitalization standardized). Mr. Torres refers to himself as a “disabled tenant.” Id. He
alleges that “[t]he close timing between the federal filing and the 7 Day Notice strongly supports
a finding of retaliation.” Id. at 4. The 7-Day Notice to Quit, which Mr. Torres included with the
motion, indicates that the proffered reason for the notice was because Mr. Torres had allegedly
“committed serious and repeated violations of the lease and the Condominium documents by
performing automotive repairs in the common-area parking lot and causing repeated oil and grease
spills that damaged the parking surface and affected multiple spaces.” ECF No. 7-2 at 1. Mr. Torres
asks that this Court issue a temporary restraining order and a preliminary injunction to prohibit the
defendants from taking any actions to evict him while this case is pending.2
2 On October 24, 2025, Mr. Torres filed a document which indicates that he has not moved from his unit.
ECF No. 10.
Case 1:25-cv-11437-MJJ Document 12 Filed 01/05/26 Page 4 of 8

5
Mr. Torres’s reference to the Fair Housing Act, Americans with Disabilities Act, and
Section 504 of the Rehabilitation Act in this motion do not provide a basis for the Court to conclude
that this action arises any of these statutes. The Fair Housing Act (“FHA”), 42 U.S.C. §§ 3601-
3619, as relevant here, “prohibits discrimination in housing and housing-related matters base on a
person’s disability.” Castillo Condo. Ass’n v. U.S. Dep't of Hous. & Urb. Dev., 821 F.3d 92, 95
(1st Cir. 2016). The FHA “outlaws discrimination in connection with the terms, conditions, or
privileges of housing.” Id. (citing 42 U.S.C. § 3604(f)(2)). “Discrimination includes, among other
things, the ‘refusal to make reasonable accommodations in rules, policies, practices, or services,
when such accommodations may be necessary to afford such person equal opportunity to use and
enjoy a dwelling.’” Id. (quoting 42 U.S.C. § 3604(f)(3)(B)). In his complaint, Mr. Torres does not
identify his disability, how the defendants discriminated against him based on that disability, or
how he exercised his rights under this statute.3
In the absence of any claim arising under federal law, the Court lacks federal subject matter
jurisdiction.
B. 	Diversity Subject Matter Jurisdiction (§ 1332)
“For purposes of diversity [subject matter jurisdiction], a person is a citizen of the state in
which he is domiciled.” Padilla-Mangual v. Pavia Hosp., 516 F.3d 29, 31 (1st Cir. 2008).4 Where
a party seeks to invoke the jurisdiction of a federal district court under § 1332, there must be
3 In addition, the Rehabilitation Act prohibits disability discrimination by “any program or activity
receiving Federal Financial assistance or under any program or activity conduct by any Executive agency
[of the United States].” 29 U.S.C. § 794(a).
The Americans with Disabilities Act applies to “public accommodations,” operated by “private entities,”
see 42 U.S.C. §§ 12181-12189, but a private residence is not a “public accommodation,” within the meaning
of the statute, see, e.g., Coe v. Cross-Lines Ret. Ctr., 645 F. Supp. 3d 1126, 1130-31 (D. Kan. 2022).
4 A corporation is a citizen in any state where it was incorporated or has its principal place of business. See
28 U.S.C. § 1332(c)(1).
Case 1:25-cv-11437-MJJ Document 12 Filed 01/05/26 Page 5 of 8

6
“complete” diversity of citizenship between the parties. See Caterpillar Inc. v. Lewis, 519 U.S. 61,
68 (1996). Complete diversity of citizenship does not exist if any defendant and any plaintiff are
citizens of the same state. See id. In other words, if a plaintiff is a citizen of Massachusetts and any
defendant is a citizen of Massachusetts, complete diversity of citizenship does not exist.
Here, Mr. Torres does not invoke the Court’s diversity subject matter jurisdiction under
§ 1332, nor does it appear that he could successfully do. Mr. Torres resides in Massachusetts, and
it appears that one or more of defendants is domiciled in Massachusetts.
III. 	Emergency Motion for Temporary Restraining Order
In the absence of a viable claim over which the Court may exercise original jurisdiction,
the Court DENIES without prejudice the emergency motion for a temporary restraining order.
IV. 	Request for Accommodation
In his request for accommodations, Mr. Torres asserts that he has a “mental impairment”
and that, under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, he
is “entitled to reasonable accommodations to fully participate in legal proceedings. ECF 9 at 1.
The accommodations he requests are “[c]lear, plain-language explanations of filings, motions, or
orders,” “[e]xtra time to read, understand, and respond to court documents,” “[a]ssistance from
court staff or an appointed advocate if necessary,” and [a]ny other accommodations the court
deems appropriate to ensure full and fair access to justice.” Id. at 1.
Neither Title II of the Americans with Disabilities Act (“ADA”) nor Section 504 of the
Rehabilitation Act mandate the requested relief. Title II of the ADA provides that “no qualified
individual with a disability shall, by reason of such disability, be excluded from participation in or
be denied the benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132. The statute defines “public entity” to
include “any State or local government” and “any department, agency, special purpose district, or
Case 1:25-cv-11437-MJJ Document 12 Filed 01/05/26 Page 6 of 8

7
other instrumentality of a State . . . or local government.” 42 U.S.C. § 12131(1). The definition of
a “public entity” does not include the federal government.
Similarly, Section 504 of the Rehabilitation provides that “[n]o otherwise qualified
individual with a disability in the United States . . . shall, solely by reason of her or his disability,
be excluded from the participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance or under any program or
activity conducted by any Executive agency or by the United States Postal Service.” 29 U.S.C.
§ 794(a) (emphasis added). The federal courts are not a “program or activity” receiving “[f]ederal
financial assistance,” or a “program or activity conducted by [an] Executive agency or by the
United States Postal Service.”
Notwithstanding, should this case go forward, Mr. Torres may, by motion, ask for an
accommodation vis-à-vis a specific matter (e.g., a motion for an extension of time to comply with
an order) as necessitated by his asserted mental impairment.
V. 	Conclusion
In accordance with the foregoing, the Court hereby orders:
1. 	The motion for leave to proceed in forma pauperis, ECF 2, is DENIED without
prejudice. If Mr. Torres wishes to proceed with this action, he must, within twenty-eight (28) days,
either (1) pay the $405 filing fee; or (2) file a renewed motion for leave to proceed in forma
pauperis.
2. 	The emergency motion for a temporary restraining order, ECF 7, is DENIED.
3. 	The request for accommodation, ECF 9, is DENIED without prejudice.
4. 	If Mr. Torres wishes to proceed with this action, he must, within twenty-eight (28)
days, file an amended complaint in which he states a claim over which the court has subject matter
jurisdiction.
Case 1:25-cv-11437-MJJ Document 12 Filed 01/05/26 Page 7 of 8

8
5. 	The motion to supplement the record, ECF 11, is DENIED as moot.
SO ORDERED.
/s/ Myong J. Joun
United States District Judge
Dated: January 5, 2026
Case 1:25-cv-11437-MJJ Document 12 Filed 01/05/26 Page 8 of 8