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Myers v. Middlesex County House of Correction

United States District Court, District of Massachusetts

January 6, 2015

SCOTT MYERS, Plaintiff,
v.
MIDDLESEX COUNTY HOUSE OF CORRECTION, et al., Defendants.

MEMORANDUM AND ORDER

DENISE J. CASPER UNITED STATES DISTRICT JUDGE

For the reasons set forth below, within 42 days of this Memorandum and Order, plaintiff shall (1) either pay the $400.00 filing and administrative fees or file an application to proceed in forma pauperis accompanied by a certified prison account statement; and (2) show cause in writing why this action should not be dismissed or file an amended complaint curing the pleading deficiencies noted herein. Plaintiff’s requests for injunctive relief and appointment of counsel are denied without prejudice. No summonses shall issue until further Order of the Court.

BACKGROUND

On November 3, 2014, Scott Myers (“Myers”), an inmate in custody of the Middlesex County House of Correction, filed a pro se complaint but failed to pay the filing fee or to seek a waiver thereof. The crux of the complaint concerns allegations of inadequate access to legal materials while Myers was initially held at the Plymouth County Correctional Facility and continuing through his current detention at the Middlesex County House Of Correction. Plaintiff seeks a injunctive and monetary relief as well as appointment of counsel.

DISCUSSION

I. The Filing Fee

A party bringing a civil action must either (1) pay the $350.00 filing fee and the $50.00 administrative fee[1], 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). Where, as here, the plaintiff is a prisoner, a motion for waiver of prepayment of the filing fee must be accompanied by “a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint . . . obtained from the appropriate official of each prison at which the prisoner is or was confined.” 28 U.S.C. § 1915(a)(2).

Unlike other civil litigants, prisoner plaintiffs are not entitled to a complete waiver of the filing fee, notwithstanding the grant of in forma pauperis status. 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). Even if the action is dismissed upon a preliminary screening, see 28 U.S.C. §§ 1915(e)(2), 1915A, the plaintiff remains obligated to pay the filing fee, see McGore v. Wrigglesworth, 114 F.3d 601, 607 (6th Cir. 1997) (§ 1915(b)(1) compels the payment of the fee at the moment the complaint is filed).

Here, plaintiff failed to pay the filing fee or file an application to proceed in forma pauperis accompanied by a certified prison account statement. Therefore, Myers will be granted additional time either to pay the $400 filing fee in its entirety, or file an application to proceed in forma pauperis accompanied by a certified copy of his prison account statement for the six month period preceding the filing of this action. Upon receipt of the requisite prison account information, a separate Order shall issue with respect to the filing fee assessment.

II. Review

Because Myers is a prisoner, he is subject to the provisions of the Prison Litigation Reform Act. The Prison Litigation Reform Act of 1995 ("PLRA"), Title VIII of Pub.L. 104-134, 110 Stat. 1321-1375 (1996), enacted several provisions which grant this Court the authority to screen and dismiss prisoner complaints. See 28 U.S.C. § 1915 (proceedings in forma pauperis); 28 U.S.C. § 1915A (screening of suits against governmental officers and entities).

Section 1915 authorizes federal courts to dismiss actions in which a plaintiff seeks to proceed without prepayment of fees if the action lacks an arguable basis either in law or in fact, Neitzke v. Williams, 490 U.S. 319, 325 (1989), or if the action fails to state a claim on 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). Section 1915A also authorizes the Court to review prisoner complaints in civil actions that seek redress from a governmental entity or officers or employees of a governmental entity and to dismiss the action regardless of whether or not the plaintiff has paid the filing fee, if it lacks an arguable basis in law or fact, fails to state a claim, or seeks relief from a defendant immune from such relief. 28 U.S.C. § 1915A.

Plaintiff’s pro se pleadings must be construed generously. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972); Instituto de Educacion Universal Corp. v. U.S. Dept., 209 F.3d 18, 23 (1st Cir. 2000). Even reading Myers' complaint with “an extra degree of solicitude, ” Rodi v. Ventetuolo, 941 F.2d 22, 23 (1st Cir.1991), due to his pro se status, see ...


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