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Halabi v. Canton Police Department

United States District Court, D. Massachusetts

March 7, 2017

ANDREW HALABI, Plaintiff,
v.
CANTON POLICE DEPARTMENT, JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, and JOHN DOE 4, Defendants.

          MEMORANDUM AND ORDER

          F. DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE.

         For the 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 amended complaint.

         I. Background

         On 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..

         The 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.

         At 3:00 p.m. that same day, while being processed at the Norfolk County House of Correction, plaintiff lost consciousness and required CPR. Compl. ¶10.[1] 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.

         II. Discussion

         A. The Court Will Conditionally Allow the Motion to Proceed In Forma Pauperis

         The 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.

         However, 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. §1915(e)(2)(B).

         B. The Court Will Deny the Motion to Serve by Regular First-Class Mail

         Plaintiff 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.

         C. The Court Will Deny the Motion for Appointment of Counsel without Prejudice

         Pro 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 ...


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