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Goodman v. Tidwell

United States District Court, D. Massachusetts

January 19, 2017

TONY GOODMAN Plaintiff,
v.
COUNSELOR TIDWELL, et al., Defendants.

          MEMORANDUM AND ORDER

          GEORGE A. O'TOOLE UNITED STATES DISTRICT JUDGE

         For the reasons stated below, plaintiff's motions for leave to proceed in forma pauperis, appointment of counsel, and temporary restraining order are denied without prejudice. If plaintiff wishes to proceed with this action, he will be granted additional time either to (1) pay the $400.00 filing and administrative fees; or (2) file a renewed motion for leave to proceed in forma pauperis accompanied by his certified prison account statement.

         I. Background

         On January 11, 2017, pro se plaintiff Tony Goodman, a self-described wheelchair-bound inmate now confined to FMC Devens, filed a complaint accompanied by motions for leave to proceed in forma pauperis, appointment of counsel, and temporary restraining order. The complaint is brought against more than a dozen defendants seeking equitable and monetary relief for alleged violations of the Civil Rights Act, 42 U.S.C. § 1983[1]; the Rehabilitation Act of 1973, 29 U.S.C. § 794; and the Americans with Disabilities Act, 42 U.S.C. § 12132. Plaintiff complains of various conditions of confinement and alleges that upon arrival at FMC Devens on November 12, 2016, he was placed in a cell that was not handicapped accessible. Less than two weeks after his arrival at Devens, he sustained injuries requiring a week of hospitalization after a failed attempt to transfer from his wheelchair to the toilet. In his motion for a temporary restraining order, Goodman asserts that the law library is not wheelchair accessible and that his requests for access to legal materials and photocopy services were denied.

         II. Discussion

         A. Plaintiff's Motion to Proceed In Forma Pauperis

         Although Goodman filed a motion for leave to proceed in forma pauperis, he failed to provide a certified prison account statement. Where, as here, the plaintiff is a prisoner, a request to proceed without prepayment of the filing fee must be accompanied by “a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint . . . obtained from the appropriate official of each prison at which the prisoner is or was confined.” 28 U.S.C. § 1915(a)(2).

         Unlike other civil litigants, prisoner plaintiffs are not entitled to a complete waiver of the filing fee, notwithstanding the grant of in forma pauperis status. Based on the information contained in the prison account statement, the Court will 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 filing fee is paid in full. See Id. § 1915(b)(1)-(2). Even if the action is dismissed upon a preliminary screening, see Id. §§ 1915(e)(2), 1915A, the plaintiff remains obligated to pay the fee, see McGore v. Wrigglesworth, 114 F.3d 601, 607 (6th Cir. 1997) (§ 1915(b)(1) compels the payment of the fee at the moment the complaint is filed).

         Because Goodman failed to file a certified copy of his prison account statement, his motion for leave to proceed without prepayment of the filing fee will be denied without prejudice.

         B. Plaintiff's Motion to Appoint Counsel and for Temporary Restraining Order

         1. Appointment of Counsel

         Although under 28 U.S.C. § 1915(e)(1), the Court “may request an attorney to represent any person unable to afford counsel, ” 28 U.S.C. §1915(e)(1), a civil plaintiff lacks a constitutional right to free counsel. See DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991). Here, plaintiff has not been granted in forma pauperis status at this point and the request for appointment of counsel will be denied without prejudice to renewal after the filing fee issue has been resolved.

         2. Temporary Restraining Order

         In his motion for a temporary restraining order, Goodman argues that the law library is not wheelchair accessible and that his requests for access to legal materials and photocopy services were denied. He seeks an order directing prison authorities to grant ...


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