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Moseley v. Spencer

United States District Court, D. Massachusetts

January 27, 2016

WILLIAM B. MOSELEY, II, Plaintiff,
v.
LUIS S. SPENCER, ET AL., Defendants.

MEMORANDUM AND ORDER

LEO T. SOROKIN UNITED STATES DISTRICT JUDGE

BACKGROUND

On October 28, 2015, plaintiff William B. Moseley, II (“Moseley”), a prisoner serving a criminal sentence at the Souza-Baranowski Correctional Center (“SBCC”) in Shirley, Massachusetts, filed a sprawling civil Complaint against the Commissioner of the Massachusetts Department of Correction (“DOC”) and fourteen (14) SBCC officers or employees.[1]

The 65-page Complaint consists of 55 pages that chronicle Moseley’s adverse daily and/or weekly prison experience at SBCC from October, 2014 to date, both as a pretrial detainee and thereafter as a convicted prisoner. In many instances, he outlines his breakfast, lunch, and dinner menus. He also outlines each corresponding informal complaint, grievance and appeal concerning these conditions of confinement. Boiling the case down to its essence, Moseley’s claims stem from his request for a Kosher diet based on his religious beliefs along with his request for continuation of his evening snack as medically prescribed for his diabetes. He alleges that he was approved for a Kosher diet but then his evening snack was removed from his diet. After he filed administrative grievances regarding the failure to provide his evening snack, he was told that he must choose either a Kosher meal diet or a medical diet, but he could not have both. Additionally, Moseley contends that for three years in a row, he has not been provided with proper Kosher-for-Passover foods or accouterments (e.g., sufficient Matzoh and grape juice, Sedar plate (with non-rancid egg and edible greens on it), and a Haggadah booklet) to celebrate Passover, despite his many requests for accommodation in advance of the holiday. Further, he claims he was told that he could not celebrate the second Sedar of Passover because this observance was not recognized.

Next, Moseley claims that as a result of his filing of grievances concerning his diet, he has been subject to retaliation, harassment, sexual harassment, discrimination based on his color and his religion, particularly by the kitchen workers, Sgt. Nano and Lt. Stubbert. He also alleges that all of the defendants engaged in a conspiracy to violate his civil rights.

Moseley asserts violations of his right to free exercise of religion under the First Amendment, the denial of due process and equal protection under the Fourteenth Amendment, and the right to be free from cruel and unusual punishment (including deliberate indifference to a serious medical need) under the Eighth Amendment. He lists his causes of action under 42 U.S.C. §§ 1983, 1985(2), 1986, Title II of the Americans with Disabilities Act, 42 U.S. § 12101 et seq., Section 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq., the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc et seq. as well as various state law claims under Massachusetts law, including claims under the Massachusetts Tort Claims Act (“MTCA”), Mass. Gen. Laws ch. 258, § 2.[2]

As relief, Moseley seeks, inter alia, a declaratory judgment, preliminary and injunctive relief, and compensatory and punitive damages.

Along with the Complaint, Moseley filed a Motion for Leave to Proceed in forma pauperis (Docket No. 3) and a Motion for Appointment of Counsel (Docket No. 2).

DISCUSSION

I. The Motion for Leave to Proceed In Forma Pauperis

Moselely’s financial affidavit indicates he has no income or assets. He also attaches a prison account statement form that he has signed indicating that he has $.10 in his canteen account and that he expects to receive $25.00-$30.00 every other month from his sister.

Moseley’s application to proceed in forma pauperis is defective because he failed to provide a certified prison account statement from the appropriate official. Where a plaintiff is a prisoner, a request to proceed without 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).[3]

Accordingly, Moseley’s Motion for Leave to Proceed in forma pauperis (Docket No. 3) is DENIED without prejudice. If Moseley elects to proceed with this action, within 21 days of the date of this Memorandum and Order, he either must: (1) pay the $400.00 filing and administrative fees[4]; or (2) file a renewed motion for leave to proceed in forma pauperis accompanied by his certified prison account statement. Failure to comply with this directive may result in a dismissal of this action without prejudice.

The Clerk shall provide plaintiff with an Application to Proceed in District Court Without Prepaying Fees or Costs. The Clerk shall also send a copy of this Memorandum and Order to the Treasurer’s Office at SBCC in order to facilitate any request by Moseley for his certified prison account statement. The Court requests that the Treasurer’s Office include in any prison account statement Moseley’s average monthly deposits for the ...


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