United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. CASPER, UNITED STATES DISTRICT JUDGE
reasons stated below, plaintiff shall be Ordered to: (1) pay
the filing fee or file a motion for leave to proceed without
prepayment of the filing fee; and (2) file an amended
complaint that complies with the Federal Rules of Civil
Procedure. Plaintiff's request for appointment of counsel
will be denied without prejudice.
August 5, 2016, pro se prisoner plaintiff Desean
Wooten, an inmate at Bridgewater State Hospital, filed a
self-prepared letter-complaint against Dr. Kahn. Plaintiff
claims that in November 2015 after suffering an
“emotional meltdown, ” he intentionally injured
himself and perforated his bowel. As a result, plaintiff has
undergone significant medical treatment and claims that Dr.
Kahn has violated his civil rights by failing to provide
appropriate medical treatment for this injury while
apparently seeks damages and equitable relief, but is unsure
of how to proceed because he is unfamiliar with legal
procedures. Plaintiff seeks appointment of counsel, and has
failed to pay the filing fee or submit a motion to proceed
in forma pauperis.
Plaintiff Must Pay the Filing Fee or File a Motion to Proceed
without Prepayment of the Fee
has failed to pay the filing fee or file a motion to proceed
without prepayment of the filing fee. Accordingly, plaintiff
shall either pay the $400 filing fee or file a motion to
proceed without prepayment of the fee. See 28 U.S.C.
§ 1915(a). Plaintiff is reminded that along with his
motion for prepayment of the fee he must file a certified
copy of his prisoner account statement for the six months
prior to the filing of this action. See 28 U.S.C.
Plaintiff must Amend his Complaint to Comply with the Basic
Pleading Requirements of the Federal Rules of Civil
complaint is subject to screening pursuant to 28 U.S.C.
§ 1915A. Plaintiff's has filed a letter complaint
that fails to comply with the basic pleading requirements of
the Federal Rules of Civil Procedure. Before the case
proceeds, the plaintiff must file an amended complaint that
complies the Federal Rules of Civil Procedure within 28 days
of the date of this Memorandum and Order. The amended
complaint must include, among other things, “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). This
statement must “give the defendant fair notice of what
the plaintiff's claim is and the grounds upon which it
rests, " Rivera v. Rhode Island, 402 F.3d 27,
33 (1st Cir. 2005) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)), such that the defendant
is afforded a "meaningful opportunity to mount a
defense." Díaz-Rivera v.
Rivera-Rodríguez, 377 F.3d 119, 123
(1st Cir. 2004) (quoting Rodríguez v.
Doral Mortgage Corp., 57 F.3d 1168, 1172 (1st
Cir. 1995)). "In a civil rights action . . ., the
complaint should at least set forth minimal facts as to who
did what to whom, when, where, and why." Educadores
PuertorriqueZos en Acción v. Hernandez, 367 F.3d
61, 68 (1st Cir. 2004). Although “the
requirements of Rule 8(a)(2) are minimal. . .‘minimal
requirements are not tantamount to nonexistent
requirements.'” Id. (quoting Gooley v.
Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir.
1988)). The amended complaint must clearly identify the
claims and relief the plaintiff seeks and provide sufficient
factual basis for each of the elements of the claims that he
asserts. While a pleading may include exhibits that are
relevant to the claims, see Fed.R.Civ.P. 10(c), use
of exhibits does not excuse plaintiff of his responsibility
to clearly set forth the relevant allegations in the body of
the complaint. The Court also notes the “[t]he title of
the complaint must name all the parties.” Fed.R.Civ.P.
10(a). And the claims in the amended complaint must be set
forth “in numbered paragraphs, each limited as far as
practicable to a single set of circumstances.”
an amended complaint completely supersedes the original
complaint, plaintiff should repeat in his amended complaint
any allegations in the original complaint that he wishes to
be part of the operative complaint. See Connectu LLC v.
Zuckerberg, 522 F.3d 82, 91 (1st Cir. 2008); Steele
v. Turner Broadcasting System, Inc., 746 F.Supp.2d 231,
235 (D. Mass. 2010) (Gorton, J.). He may not, for example,
incorporate by reference allegations from prior complaint
into the amended complaint.
Plaintiff's Request for Appointment of Counsel is
Denied Without Prejudice
se litigants “possess neither a constitutional nor
a statutory right to appointed counsel.” Montgomery
v. Pinchak, 294 F.3d 492, 498 (3rd Cir.2002); see
also DesRosiers v. Moran, 949 F.2d 15, 23 (1st
Cir.1991). Presuming for the moment that plaintiff will seek
to proceed in forma pauperis, pursuant to 28 U.S.C.
§ 1915(e)(1), the Court maintains broad discretion to
“request an attorney to represent any person unable to
afford counsel.” 28 U.S.C. § 1915(e)(1). Weir
v. Potter, 214 F.Supp.2d 53, 54 (D. Mass. 2002). The
Court may request an attorney to represent a plaintiff if it
finds that (1) the plaintiff is indigent and (2) exceptional
circumstances exist such that the denial of counsel will
result in a fundamental unfairness impinging on the
party's due process rights. DesRosiers v. Moran,
949 F.2d 15, 23 (1st Cir. 1991). Even if plaintiff is
indigent, he has not yet demonstrated “exceptional
circumstances” that warrant appointment of counsel in
this action. Rather, plaintiff's maintains he is
unfamiliar with legal proceedings - a common issue among
pro se prisoner litigants. Moreover, appointment of
counsel is premature where the complaint will need to be
amended. Accordingly, this request will be denied without
prejudice to the plaintiff renewing the request.