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Kersey v. Becton Dickinson and Co.

United States District Court, D. Massachusetts

August 25, 2016

GEORGE E. KERSEY, Plaintiff,
v.
BECTON DICKINSON AND CO., et al. Defendants.

          MEMORANDUM AND ORDER

          Leo T. Sorokin United States District Judge

         For the 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.

         BACKGROUND

         George 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.

         In 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.[1] Id. The following week, on June 9, 2016, Kersey filed a renewed Application. See Doc. No. 12.

         On June 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.

         On June 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.

         DISCUSSION

         I. The Motion for Leave to Proceed In Forma Pauperis

         As an 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.

         Here, 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.

         II. Standard of Review

         When a 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).

         Although 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 ...


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