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Jones v. Commonwealth of Massachusetts Executive Office of Public Safety

United States District Court, D. Massachusetts

October 12, 2016

EDWARD JONES, Plaintiff,
v.
COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF PUBLIC SAFETY, DANIEL BENNETT, DEPARTMENT OF CORRECTION, CAROL HIGGINS-O'BRIEN, THOMAS TURCO, CHRISTOPHER FALLON, LISA MITCHELL, DOUGLAS BOWER, MICHAEL DEVINE, JOHN F. CAMELO, SCOTT J. STEEVER, HANK L. LAVALLEY, MARTA LEON, MASSACHUSETTS PARTNERSHIP FOR CORRECTIONAL HEALTH, NEIL NORCLIFFE, and TODD DERBYSHIRE. Defendants.

          MEMORANDUM AND ORDER

          LEO T. SOROKIN UNITED STATES DISTRICT JUDGE.

         For the reasons stated below, the Court will deny the renewed motion to proceed in forma pauperis, deny without prejudice the motion for appointment of counsel, and order the plaintiff to file an amended complaint within 28 days of the date of the entry of this Memorandum and Order.

         I. Introduction

         On August 19, 2016, pro se prisoner plaintiff Edward Jones filed a voluminous complaint against three groups of defendants: (1) the Commonwealth of Massachusetts, Department of Corrections, the Executive Office of Public Safety (collectively, the “Commonwealth Entity Defendants”); (2) Daniel Bennett, Carol Higgins-O'Brien, Thomas Turco, Christopher Fallon, Lisa Mitchell, Douglas Bower, Michael Devine, John F. Camelo, Scott J. Steever, Hank Lavalley, Marta Leon (collectively, the “Commonwealth Personnel Defendants”); and, (3) the Massachusetts Partnership for Correctional Health, Neil Norcliffe and Todd Derbyshire (collectively, the “Medical Defendants”). The 95-page complaint consists of 273 paragraphs and nine counts. Attached to the complaint are 142 pages of exhibits. Plaintiff alleges numerous causes of action both state (pendant) and federal claims, relating to failure to protect, retaliation, loss of good time credit, inadequate medical care, due process violations relating to disciplinary hearing, infliction of emotional distress, conspiracy, violations of statutes relating to the protection of the mentally ill and the Americans with Disabilities Act. Along with his complaint, plaintiff filed a motion to proceed in forma pauperis. (ECF No. 2), a motion for an order for access to plaintiff's institutional savings account funds (ECF No. 3), and a motion for appointment of counsel (ECF No. 4).

         On August 24, 2016, this Court issued an Order (ECF No. 7) denying without prejudice plaintiff's motion for leave to proceed in forma pauperis (ECF No. 2) and denying the motion for an order for access to plaintiff's institutional savings account funds (ECF No. 3). Plaintiff was directed to either pay the filing and administrative fee within 28 days, or file a renewed motion for leave to proceed in forma pauperis, specifying what steps he has taken to obtain funds from whatever financial sources he may have. On September 6, 2016, plaintiff filed a renewed Motion for Leave to Proceed in forma pauperis (ECF No. 8).

         II. Discussion

         A. Plaintiff's Renewed Motion for Leave to File In Forma Pauperis

         Upon review of plaintiff's renewed financial affidavit and his prison account statement, this Court finds that plaintiff has insufficient funds in his prison personal account, but he reports $550.97 in his prison savings account. It is still unclear whether plaintiff can obtain access to these funds for payment of the filing fee.

         Accordingly, plaintiff's renewed Motion for Leave to Proceed in forma pauperis (ECF No. 8) is DENIED. Within 28 days of the date of this Memorandum and Order, plaintiff shall pay the $400.00 filing fee or this action shall be dismissed without prejudice. Plaintiff may seek reconsideration of the denial of his in forma pauperis motion within the 28-day period, but only if he cannot pay the filing fee from his savings account.

         B. Plaintiff's Motion for Appointment of Counsel

         Plaintiff's motion for appointment of counsel (ECF No. 4) is DENIED without prejudice. The Court may request an attorney to represent plaintiff if it finds that: (1) plaintiff is indigent and (2) exceptional circumstances exist such that the denial of counsel will result in a fundamental unfairness impinging on his due process rights. DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991); 28 U.S.C. 1915(e)(1). Until the filing fee issue is resolved, and the complaint is amended and screened, it is premature for the Court to decide whether to request counsel appear on plaintiff's behalf in this matter. The Court may consider appointment of counsel later in this litigation once the disputed issues have become clear. Accordingly, plaintiff's motion for appointment of counsel (ECF No. 4) is DENIED without prejudice to the plaintiff filing a renewed motion if summonses are eventually issued in this action.

         C. Preliminary Screening of the Complaint

         Because plaintiff is a prisoner, his complaint is subject to screening pursuant to 28 U.S.C. § 1915A. Section 1915A authorizes the Court to review prisoner complaints in civil actions in which a prisoner seeks redress from a governmental entity, or officers or employees of a governmental entity, and to dismiss the action regardless of whether or not the plaintiff has paid the filing fee, if the complaint lacks an arguable basis in law or fact, fails to state a claim, or seeks relief from a defendant immune from such relief. 28 U.S.C. § 1915A. In connection with this preliminary screening, plaintiff's pro se Complaint is construed generously. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972); Instituto de Educacion Universal Corp. v. U.S. Dept. of Education, 209 F.3d 18, 23 (1st Cir. 2000). Even under a broad reading, however, the complaint is deficient for the reasons set forth below, among others, and the plaintiff will be afforded an opportunity to amend his complaint.

         1. The Complaint Fails to Comply with Basic Pleading Requirements of the Federal Rules of Civil ...


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