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Myers v. McDonald

United States District Court, D. Massachusetts

November 13, 2014

STEPHAN V. MYERS, Plaintiff,
v.
JOSEPH MCDONALD, et al., Defendants.

MEMORANDUM AND ORDER

LEO T. SOROKIN, District Judge.

For the reasons stated below, (1) plaintiff is assessed an initial partial filing fee of $30.94 with the remainder to be assessed and collected in accordance with 28 U.S.C. § 1915(b)(2); (2) the Clerk shall issue a summons for defendant Jeanne Lotrionte and reissue a summons for defendant Rencricca; and (3) plaintiff's request for injunctive relief is denied.

BACKGROUND

Plaintiff Stephan V. Myers ("Myers"), a prisoner at the Plymouth County Correctional Facility, filed a civil action alleging, among other things, deliberate indifference to Myers' serious medical needs. By Order dated October 30, 2014, Myers' motion for leave to proceed in forma pauperis was allowed. See Docket No. 5. Because Myers failed to submit a certified prison account statement, the Court deferred assessment of an initial filing fee pursuant to 28 U.S.C. § 1915(b) and the Clerk was directed to issue summons for service of all the defendants. Id . At that time, the Clerk provided Myers with the forms for requesting service by the United States Marshals Service. See Docket No. 6-1.

On November 10, 2014, the Court received a letter from Myers accompanied by a copy of his prison account statement. See Docket No. 8. In his letter, Myers states that he personally watched a correctional officer hand a summons to Dr. Rencricca. Id . With his letter, Myers also submitted proof of service, that he completed himself, for the summons that was issued for service of defendant Rencricca. Id. at 5. Myers requests a courtesy copy of the complaint explaining that his original copy went missing after a "shakedown." Id. at p. 2. He also explains that the correct spelling of defendant Lotviante's name is Lotrionte.

Finally, Myers states that his letter may "also be a request for transfer and a request for a stay away/restraining order on the known defendants." Id . Myers states that since filing this lawsuit "things are starting to heat up" and he was "almost thrown down the stairs by a correctional officer who was mocking [Myers] for being a pro se defendant." Id. at p. 1.

DISCUSSION

I. The Filing Fee

Because Myers is a prisoner, he is obligated to make payments toward the filing fee pursuant to 28 U.S.C. § 1915(b). Based upon the prison account statement submitted by Myers, he is assessed an initial partial filing fee of $30.94, pursuant to 28 U.S.C. § 1915(b)(1)(A). The remainder of the fee, $319.06, is to be assessed and collected in accordance with 28 U.S.C. § 1915(b)(2).

II. Summons

On October 30, 2014, the Clerk issued summons for the four defendants, including defendant Jeanne Lotviante. Because Myers advised the Court this defendant's name is spelled Lotrionte, the Clerk shall correct this defendant's name on the docket and issue a summons for Jeanne Lotrione. The Clerk shall mail the summons, a copy of the complaint and this Memorandum and Order to the plaintiff, who must thereafter serve the defendants in accordance with Federal Rule of Civil Procedure 4(m). The plaintiff may elect to have service made by the United States Marshal Service.

III. Proof of Service

To the extent Myers filed a "proof of service" on defendant Rencricca, he is advised that his proof of service is insufficient under the applicable rules. The proof of service must be completed by the process server. Here, the process server appears to be a correctional officer that personally served defendant Rencricca. Although Myers is responsible for having a summons and complaint served on each defendant, only a person who is at least eighteen years old and not a party may serve a summons and complaint. See Rule 4(c)(2) of the Federal Rules of Civil Procedure. Assuming defendant Rencricca is ...


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