United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE.
reasons stated below, the Court will (1) conditionally grant
the motion to proceed in forma pauperis, (2) deny
the motion for service by mail, (3) deny without prejudice
the motion for appointment of pro bono counsel, (4)
dismiss without prejudice the claims against the Canton
Police Department, and (5) order the plaintiff to file an
January 19, 2017, pro se prisoner plaintiff Andrew
Halabi filed a self-prepared complaint against the Canton
Police Department and four unknown defendants, or “John
Does, ” for violation of his civil rights pursuant to
42 U.S.C. § 1983. ECF No. 1. In addition to his
complaint, plaintiff filed a motion for leave to proceed
in forma pauperis and a motion for service by
regular mail. On February 3, 2017, this Court issued a
procedural order denying the motion to proceed in forma
pauperis without prejudice because plaintiff had failed
to provide the required prison account statement. On February
7, 2017, plaintiff filed a motion to appoint counsel. On
February 15, 2017, plaintiff filed a renewed motion to
proceed in forma pauperis and a prison account
statement. Apparently after mailing the motion, but prior to
its docketing, plaintiff was released from custody..
complaint alleges the following facts. Plaintiff is a
disabled diabetic with several complications. He was arrested
on April 1, 2016, at 3:00 a.m., by the Canton Police. Compl.
¶¶4-5. While in custody at the Canton Police
Department, he experienced symptoms indicative of
hypoglycemia and informed the defendants of his medical
issues. Compl. ¶¶6-7. Defendants allegedly refused
him medical treatment and to provide food or drink that would
alleviate the symptoms. Compl. ¶¶7-8. Plaintiff
also asked that his left ankle restraint not be tightened
because of his medical conditions. Compl. ¶9.
p.m. that same day, while being processed at the Norfolk
County House of Correction, plaintiff lost consciousness and
required CPR. Compl. ¶10. He was treated in the infirmary
for a week and released to general population, where he
contends that he had ongoing symptoms, as well as pain and
suffering. Compl. ¶¶10-13. He contends that his
civil rights under the Eighth Amendment to the United States
Constitution have been violated.
The Court Will Conditionally Allow the Motion to Proceed
In Forma Pauperis
filing-fee requirements applicable to prisoners proceeding
in forma pauperis pursuant to 28 U.S.C.
§1915(b) no longer apply to plaintiff because he is no
longer detained. See Brown v. Eppler, 725
F.3d 1221, 1231 n.7 (10th Cir. 2013) (citing DeBlasio v.
Gilmore, 315 F.3d 396, 399 (4th Cir. 2003)). Rather, the
fee-payment requirements of non-prisoners proceeding in
forma pauperis pursuant to 28 U.S.C. §1915(a)
apply. Id. Plaintiff apparently receives social
security disability income and reports that he is unemployed.
He also avers that he has no other sources of income and no
assets. On this record, the Court concludes that plaintiff
lacks funds to prepay the filing fee. The Court will
conditionally grant the motion.
because the plaintiff's detention status has changed
after his submission of information to the Court, to the
extent that any information contained therein has materially
changed other than his detention status, he shall, within 14
days of the entry of this memorandum and order, file an
updated Application to Proceed in District Court without
Prepaying Fees or Costs. Because he is proceeding in
forma pauperis, the action is subject to screening and
the court may dismiss a claim sua sponte if it is
frivolous, malicious, fails to state claim upon which relief
can be granted, or seeks monetary relief against a defendant
who is immune from such relief. See 28 U.S.C.
The Court Will Deny the Motion to Serve by Regular
requested that service be permitted by mail because he is
indigent and at the time he filed the motion he was in
custody. He reports that he is no longer in custody.
Moreover, if summonses eventually issue in this action, the
costs of service of the summons and complaint may be advanced
by the United States Marshals Service because he is being
permitted to proceed in forma pauperis. Accordingly,
plaintiff's motion for service by regular first-class
mail will be denied.
The Court Will Deny the Motion for Appointment of Counsel
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). 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). While the
plaintiff is indigent, he has not demonstrated
“exceptional circumstances” that warrant
appointment of counsel, but rather merely requests