United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
G. MASTROIANNI UNITED STATES DISTRICT JUDGE
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
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).
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).
Motion to Proceed In Forma Pauperis
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.
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).
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).
Motion for Injunctive Relief
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).
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).
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 ...