United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DOUGLAS P. WOODLOCK, District Judge.
For the reasons set forth below, the plaintiff's motion for leave to proceed in forma pauperis is granted, summonses shall issue as to two defendants, and the plaintiff's motion for counsel is denied without prejudice.
Jermaine Seams, who is incarcerated at the North Central Correctional Institution at Gardner, brings this action in which he alleges that prison officials and correction officers at MCI Concord failed to protect him from an attack on him by other inmates while he was a pretrial detainee. Seams claims that prison officials knew that he had previously been attacked by rival gang members while incarcerated and that the general population of MCI Concord included members of the rival gang. The plaintiff further alleges that when he was released from segregation into the general population, he was brutally beaten by the rivals and had to be transported to nearby Emerson Hospital. According to Seams, while he was at the hospital, a MCI Concord prison guard informed the plaintiff that prison officials had made a "mistake" by releasing Seams into the MCI Concord general population. Seams represents that he was subsequently transferred to a different prison, where he spent several days in the infirmary. He states that two inmates were criminally charged for the assault. Seams names as defendants the the Massachusetts Department of Correction ("DOC"), MCI Concord Superintendent Raymond Marchilli, MCI Concord Sergeant Phillip Kong, and eight "John Doe" defendants, all of whom are DOC employees working at MCI Concord (Deputy Superintendent of Operations, Deputy Superintendent of Classification, Director of Security, Director of Classification, Inner Perimeter Security Team Commander, and three prison guards). The plaintiff asserts claims 42 U.S.C. § 1983 and state tort law.
A. Motion to Proceed In Forma Pauperis
Upon review of the plaintiff's motion for leave to proceed in forma pauperis, I conclude that the plaintiff has sufficiently demonstrated that he is without income or assets to prepay the filing fee. Accordingly, the motion is allowed. Pursuant to 28 U.S.C. § 1915(b)(1), an initial partial filing fee of $52.33 is assessed. The remainder of the fee, $297.67, shall be collected in accordance with 28 U.S.C. § 1915(b)(2).
B. Screening of the Complaint
Because Seams is proceeding in forma pauperis, the complaint is subject to a preliminary screening under 28 U.S.C. § 1915(e)(2). Similarly, under 28 U.S.C. § 1915A, prisoner complaints in civil actions that seek redress from a governmental entity or officers or employees of a governmental entity are also subject to screening. Both § 1915 and § 1915A authorize federal courts to dismiss a complaint sua sponte if the claims therein are malicious, frivolous, fail to state a claim on which relief may be granted, or seek monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b). Further, a court has an obligation to inquire sua sponte into its own jurisdiction. See McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir. 2004). In reviewing the sufficiency of the complaint, I liberally construe the pleading because the plaintiff is proceeding pro se. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
The DOC must be dismissed as a defendant because, as an agency or department of the Commonwealth of Massachusetts, it enjoys immunity from suit in federal courts pursuant to the Eleventh Amendment of the United States Constitution. The Eleventh Amendment is generally recognized as a bar to suits in federal courts against a state, its departments and its agencies, unless the state has consented to suit or Congress has overridden the state's immunity. See Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997); Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985); Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam); Hudson Sav. Bank v. Austin, 479 F.3d 102, 105-06 (1st Cir. 2007).
Here, I cannot discern any claim for relief for which the Commonwealth of Massachusetts has waived its immunity or Congress has overridden it. By enacting the Massachusetts Tort Claims Act, the Commonwealth did not waive its Eleventh Amendment immunity. See Caisse v. DuBois, 346 F.3d 213, 218 (1st Cir. 2003). Further, a state is not a "person" within the meaning of 42 U.S.C. § 1983. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 65-66 (1989). Accordingly, I will dismiss the DOC as a defendant in this action.
C. Motion for Appointment of Counsel
Under 28 U.S.C. § 1915(e)(1), I "may request an attorney to represent any person unable to afford counsel." 28 U.S.C. §1915(e)(1). However, a civil plaintiff lacks a constitutional right to free counsel. See DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. Cir. 1991). To qualify for appointment of counsel, a party must be indigent and exceptional circumstances must exist such that the denial of counsel will result in fundamental unfairness impinging on the party's due process rights. See id. To determine whether there are exceptional circumstances sufficient to warrant the appointment of counsel, I must must examine the total situation, focusing on the merits of the case, the complexity of the legal issues, and the litigant's ability to represent himself. See id. at 24.
Because the defendants have not been served with or responded to the complaint, I am unable to make this determination. The motion for counsel is therefore denied without prejudice. Seams may renew the motion after Marchilli ...