United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
INDIRA TALWANI, District Judge.
For the reasons stated below, (1) plaintiff's Application to Proceed in District Court without Prepaying Fees or Costs is allowed; (2) plaintiff is assessed an initial, partial filing fee; (3) plaintiff's Motion to Appoint Counsel is denied without prejudice; (4) plaintiff's Motion for Injunctive Relief is denied as premature; (5) plaintiff's request to impound the proceedings is denied; and (6) within forty-two (42) days of the date of this Memorandum and Order, plaintiff shall show cause why his complaint should not be dismissed, or in the alternative, he shall file an amended complaint curing the pleading deficiencies noted herein.
On March 10, 2014, Patrick Morgan ("Morgan"), an inmate confined to the Middlesex House of Correction, initiated this civil action by filing a "Complaint" pursuant to "28 U.S.C. § 2254" accompanied by an Application to Proceed Without Prepayment of Fees as well as an affidavit stating, among other things, that he had requested a withdrawal from his prison account in order to pay the $5.00 filing fee for a habeas corpus action.
By Memorandum and Order dated April 16, 2014, Morgan's Application to Proceed Without Prepayment of Fees was denied without prejudice and he was ordered that if he wished to proceed with this action to file either an amended habeas petition or a complaint. See Docket No. 5.
Now before the Court are Morgan's (1) motion for appointment of counsel, (2) complaint, (3) renewed application to proceed in district court without prepaying fees or costs and (4) motion for injunctive relief. See Docket Nos. 7, 9-11.
Although the case caption of the complaint names as the defendant the "Middlesex Sheriff's Office, " Morgan explains in the body of the complaint that "[t]his action is brought as a civil rights complaint against the Sheriff of Middlesex County pursuant to 42 U.S.C. § 1983." See Pl. Compl., ¶ 3, Docket No.
9. Additionally, paragraph 2 of the complaint identifies the sole defendant as the Sheriff of Middlesex County. Id. at ¶ 2. Plaintiff alleges that the Sheriff is "the executive officer of a public employer, to wit the Middlesex Sheriff's Office, whose employee's negligence caused the Plaintiff to suffer damages." Id. at ¶ 3. He alleges exhaustion of his administrative remedies. Id.
In his complaint, Morgan explains that in 2010 he was arrested in Framingham and was remanded without bail to the Middlesex Jail in Cambridge. Id. at p. 2. According to Morgan, he was subjected to cruel and unusual punishment during his 34 month incarceration. Id.
Morgan alleges that he has been unable to gain access to weekly counseling at the jail. Id. at p. 5. Morgan complains that he has been transferred to county facilities as well as to Bridgewater State Hospital for a mental health evaluation under M.G.L. ch. 123, § 18A. Id. at p. 3. Morgan alleges that weekly religious services not being offered to all inmates. Id. at p. 3.
Morgan contends that his "health has been drastically exacerbated due to abuse by the Sheriff's dpt's (sic), and this litigation." Id. at p. 2. Morgan alleges that the defendant abused his authority by issuing policies such as a requirement for inmates in the Billerica segregation unit to wear safety tunics known as "turtle suits" which were never washed. Id. at p. 3. Plaintiff complains that the Billerica jail does not wash prison jump suits. Id. at p. 4. Morgan alleges that he was "Hog-tied" inside the segregation unit and was subjected to extended use of chemical and physical restraints. Id. at p. 3. Morgan alleges that on August 29, 2011, he was confined to "The Chair" for 22 hours straight while handcuffed behind the back. Id. at p. 4.
Plaintiff alleges that the cells were "extremely dirty, often with blood, and vitroil oil on the walls." Id. at p. 3. He alleges that he could shower only three days a week and was not permitted to obtain personal hygiene items from the canteen. Id . Morgan alleges that he witnessed the shift commander tell an inmate that the jail doesn't follow the state regulations. Id.
Morgan alleges that he was subjected to harassment and retaliation from the defendant for filing administrative complaints as well as for filing a civil action in Middlesex Superior Court which was subsequently dismissed for lack of service. Id. at p. 2. The retaliation took the form of (1) delayed, lost or stolen correspondence; and (2) an unreasonable search of plaintiff's housing area. Id. at p. 4. Morgan states that he "is afraid of any more abuse/retaliation by the Sheriff's dpt. (sic)" Id.
II Plaintiff's Application to Proceed In District Court Without Prepaying Fees or Costs
A party bringing a civil action must either (1) pay the $350.00 filing fee and the $50.00 administrative fee, see 28 U.S.C. § 1914(a); or (2) seek leave to proceed without prepayment of the filing fee, see 28 U.S.C. § 1915 (proceedings in forma pauperis).
Based upon the information contained in Morgan's application and the prison account statement submitted therewith, the Court grants the application. The grant of the application only relieves Morgan of the obligation to prepay the filing fee.
As explained in the court's earlier order, unlike other civil litigants, prisoner plaintiffs are not entitled to a complete waiver of the $350.00 filing fee, notwithstanding the grant of in forma pauperis status. See 04/16/14 Memorandum and Order, Docket No. 5, p. 4, n. 3. Based on the information contained in the prison account statement, the court will direct the appropriate prison official to withdraw an initial partial payment from the plaintiff's account, followed by payments on a monthly basis until the entire $350.00 filing fee is paid in full. See 28 U.S.C. § 1915(b)(1)-(2).
In accordance with 28 U.S.C. § 1915(b)(1), the Court assesses an initial partial filing fee of $26.51. The rest of the filing fee, $323.49, shall be collected ...