United States District Court, D. Massachusetts
GEORGE E. KERSEY, Plaintiff,
BECTON DICKINSON AND CO., et al. Defendants.
MEMORANDUM AND ORDER
Sorokin United States District Judge
reasons set forth below, the Court: (1) allows
plaintiff's motion for leave to proceed in forma
pauperis, Doc. No. 12; (2) denies plaintiff's motion
to strike and renewed motion for default, Doc. No. 17; (3)
dismisses the complaint against Becton Dickinson and Co.
(“BD”); (4) allows BD's motion for sanctions,
Doc. No. 15, and awards attorney's fees and costs
incurred by BD in bringing its motion; and (5) orders the
plaintiff to show good cause why the remainder of his
complaint should not be dismissed or, in the alternative,
file an amended complaint that cures the pleading
deficiencies of the original complaint.
Kersey brings this diversity action alleging breach of
contract. The Court denied without prejudice the Application
to Proceed in District Court Without Prepaying Fees or Costs
(“Application”) because Kersey failed to provide
a complete statement of his income. See Doc. No. 7.
Kersey was advised that if he wished to pursue this action,
he had to either pay the $400 filing and administrative fees
or file a complete Application. Id.
response to the Court's order, Kersey contends that he is
entitled to proceed in forma pauperis and argues
that he has complied with all applicable statues and local
rules. See Doc. No. 11. Kersey also states that he
sent to defendant a notice of lawsuit and request for waiver
of service. Id. The following week, on June
9, 2016, Kersey filed a renewed Application. See
Doc. No. 12.
22, 2016, defendant BD moved for the Court to sanction Kersey
pursuant to Rule 11 for filing a complaint BD contends is
frivolous, legally unreasonable and without factual
foundation. See Doc. No. 15. Specifically, BD argues
that Kersey is pursuing a third-party beneficiary claim that
is barred by res judicata principles and thus is for
the improper purpose of harassing BD. Id. BD argues
that the third-party beneficiary issue has already been
decided in BD's favor and that there is no evidence to
support Kersey's allegations that he is a third-party
beneficiary. BD's Rule 11 motion seeks to have this Court
award attorneys' fees and strike Kersey's complaint
with prejudice. Id.
24, 2016, Kersey filed a motion seeking to
“strike” BD's motion for sanctions and
renewed his motion for default judgment. See Doc.
No. 17. BD filed an opposition and reply in support of motion
for sanctions. See Doc. No. 18.
Motion for Leave to Proceed In Forma Pauperis
initial matter, the Court notes that Kersey contends that
because Section 1915 refers to “prisoners, ” he
is not required to disclose to the Court all of his assets.
However, federal courts apply Section 1915 to non-prisoner
in forma pauperis applications as well as prisoner
applications. See, e.g., Hickson v.
Mauro, 2011 WL 6001088, at * 1 (D.N.J. 2011) (citing
Lister v. Dept. of Treasury, 408 F.3d 1309, 1312
(10th Cir. 2005) (“Section 1915(a) applies to all
persons applying for IFP status, and not just to
prisoners.”) (citing Martinez v. Kristi Kleaners,
Inc., 364 F.3d 1305, 1306 n.1 (11th Cir. 2004);
Haynes v. Scott, 116 F.3d 137, 140 (5th Cir. 1997);
Floyd v. United States Postal Serv., 105 F.3d 274,
275 (6th Cir. 1997)). It is commonly understood that a
typographical error in the final version of the statute
occurred and Congress intended the phrase “that
includes a statement of all assets such prisoner
possesses” to read “that includes a statement of
all assets such person possesses.” See Haynes v.
Scott, 116 F.3d at 139-40 (“We think the most
natural reading ... is that Congress intended all petitioners
to be more specific in their (a)(1) affidavits and that it
intended prisoners to meet additional requirements under
(a)(2).”); see also Douris v. Middletown Twp.,
293 F.App'x 130 (3d Cir. 2008) (“The reference to
prisoners in § 1915(a)(1) appears to be a mistake.
In forma pauperis status is afforded to all indigent
persons, not just prisoners.”). This Court interprets
the statute accordingly.
Kersey's Application to Proceed in District Court Without
Prepaying Fees or Costs is incomplete in that he fails to
specify the amount of Social Security benefits he receives
each month. See Doc. No. 12. Notwithstanding this
failure, the Court finds, based on the application, that
plaintiff's sole source of income is from Social Security
payments, and, taking judicial notice that others so situated
qualify, the Court concludes that Kersey satisfies the
requirements for in forma pauperis status.
Accordingly, his application for leave to proceed for in
forma pauperis is granted.
Standard of Review
plaintiff is permitted to proceed without prepayment of the
filing fee, summonses do not issue until the Court reviews
the complaint and determines that it satisfies the
substantive requirements of 28 U.S.C. § 1915. Section
1915 authorizes federal courts to dismiss complaints sua
sponte if the claims therein lack an arguable basis in
law or in fact, 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); Denton v. Hernandez, 504 U.S. 25, 32-33
(1992); Neitzke v. Williams, 490 U.S. 319, 325
(1989); Gonzalez-Gonzalez v. United States, 257 F.3d
31, 37 (1st Cir. 2001).
Kersey is proceeding pro se, the Court notes that
Kersey states that he was an attorney before he was disbarred
by Massachusetts and New Hampshire. Courts have declined to
construe liberally the pleadings of former attorneys
appearing pro se. See, e.g.,
Presnick v. Bysiewicz, 297 F.Supp.2d 431, 433 (D.
Conn. 2003) (“While pro se complaints are held
to less exacting standards than pleadings drafted by lawyers,
plaintiff, a former attorney, is not entitled to the
considerations accorded a typical pro se
plaintiff.”); Bertucci v. Brown, 663 F.Supp.
447, 449 (E.D.N.Y. 1987) (former attorney proceeding pro
se was “not entitled to the considerations
accorded a typical pro se plaintiff”).
Although Kersey is not a typical pro se litigant,
the Court will, in an abundance of caution, afford him some
leeway. See In re Osborne, No. 13-CV-8211 CS, 2014
WL 2738558, at * 2 n.5 (S.D.N.Y. June 17, 2014) (noting that
it was unclear whether former attorney proceeding pro
se was entitled to ...