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De La Cruz v. United States

United States District Court, D. Massachusetts

September 22, 2016

LUIS DE LA CRUZ, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.

          MEMORANDUM AND ORDER

          MARK G. MASTROIANNI UNITED STATES DISTRICT JUDGE

         For the reasons set forth below, the court (1) allows plaintiff's motion for leave to proceed in forma pauperis; (2) assesses an initial partial filing fee; (3) denies without prejudice plaintiff's motion for appointment of counsel; and (4) orders the clerk to (a) issue summons for service of the complaint and the emergency motion for injunctive relief and (b) issue a date by which defendants shall submit an expedited response to plaintiff's emergency motion for injunctive relief.

         I. Background

         On September 12, 2016, Luis De La Cruz (“De La Cruz”), a prisoner now incarcerated at FMC Devens, filed a motion for a preliminary injunction and/or a temporary restraining. (Dkt. No. 1, Pl. TRO). The TRO motion names as defendants the United States of America, Attorney General Loretta Lynch, Warden Jeffrey Grondolsky, and the Federal Bureau of Prisons (“BOP”). Id. De La Cruz seeks an order requiring the BOP immediately treat his throat infection and remove his tonsils. Id. The following documents are attached to the TRO motion: (1) 8/2/2016 informal resolution request; and (2) 8/29/2016 warden's response denying request for surgery to remove enlarged cryptic tonsils. Id. With his TRO motion, De La Cruz filed a motion for leave to proceed in forma pauperis. (Dkt. No. 2, Pl. IFP).

         On September 13, 2016, De La Cruz filed his complaint naming as defendants the United States of America, Attorney General Loretta Lynch, Warden Jeffrey Grondolsky, and the BOP. (Dkt. No. 6, Pl. Compl.). He also filed a motion for counsel and authorization for deduction of the filing fee payments in installments. (Dkt. Nos. 7, 8).

         II. Discussion

         A. Motion to Proceed In Forma Pauperis

         Plaintiff filed a motion for leave to proceed in forma pauperis. (Dkt. No. 2, Pl. IFP). To the IFP motion, De La Cruz attaches an affidavit and a copy of his prison account statement. Id.

         Unlike other civil litigants, prisoner plaintiffs such as De La Cruz are not entitled to a complete waiver of the filing fee, notwithstanding the grant of in forma pauperis status. The in forma pauperis statute requires the court to direct the appropriate prison official to withdraw an initial partial payment from the plaintiff's account, followed by payments on a monthly basis until the entire $350.00 filing fee is paid in full. See 28 U.S.C. § 1915(b)(1)-(2). Even if the action is dismissed upon a preliminary screening, see 28 U.S.C. §§ 1915(e)(2), 1915A, the plaintiff remains obligated to pay the filing fee, see McGore v. Wrigglesworth, 114 F.3d 601, 607 (6th Cir. 1997) (stating § 1915(b)(1) compels the payment of the fee at the moment the complaint is filed).

         Upon review of De La Cruz's financial disclosures, he will be permitted to proceed in forma pauperis. Nevertheless, because De La Cruz is a prisoner as defined by 28 U.S.C. § 1915(h), he is obligated to make payments toward the filing fee pursuant to 28 U.S.C. § 1915(b). Accordingly, he will be assessed an initial, partial filing fee of $5.81 to be followed by payments on a monthly basis until the entire $350.00 filing fee is paid in full. See 28 U.S.C. § 1915(b)(1)-(2).

         B. Motion for Injunctive Relief

         In ruling on a motion for a preliminary injunction or temporary restraining order, the court must consider: “(1) the movant's likelihood of success on the merits; (2) whether and to what extent the movant would suffer irreparable harm if the request were rejected; (3) the balance of hardships between the parties; and (4) any effects that the injunction or its denial would have on the public interest.” Diaz-Carrasquillo v. Garcia-Padilla, 750 F.3d 7, 10 (1st Cir. 2014).

         Plaintiff's emergency motion and the underlying claim for violation of his civil rights contains allegations of severe pain, inability to swallow without extreme pain, the spreading of white spots in his throat, and a recent suggestion by one medical provider that his condition could be cancer. (Dkt. No. 1, Pl. TRO).

         The record must be developed further before the court can assess the merits of plaintiff's claims. Without the benefit of a response from the defendants, the court lacks sufficient information to support a finding that De La Cruz has shown a likelihood of success on the merits or shown the harm to the defendants would not outweigh the harm to him should injunctive relief be granted. For these reasons, the court declines to grant ex-parte relief at ...


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