United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
PAGE KELLEY UNITED STATES MAGISTRATE JUDGE
25, 2018, Richard McFee (“McFee”), who is
confined at FMC Devens and proceeding pro se, filed
a document captioned as follows: “Injunction Motion
Requesting For Appointment of Legal Counsel and Order of
Protection Against Federal Medical Facility Fort Devens
Correctional and Medical Administration to Treat My Serious
Medical Issues as Outlined [Below]” (Docket No. 1). On
June 4, 2018, this matter was referred to the undersigned for
“Full pretrial / Case Management and RR on Dispositive
Motions.” (Docket No. 3).
complains that the medical providers at FMC Devens have
refused “to see [plaintiff] and examone (sic) the
damages [he sustained from an assault while in custody at FMC
Rochester].” (Docket No. 1, p. 2). McFee states that
against the medical advice of his doctor, he was transferred
to FMC Devens on December 7, 2017. Id. pp. 2-3. He
further states that on April 27, 2018, he was taken to a
local hospital for treatment of an unrelated blood disorder.
Id. p. 2. In conclusion, McFee states that he is
weak and requests appointment of counsel. Id. p. 3.
Federal Rules of Civil Procedure make clear that only a
properly-filed complaint can commence a civil action.
See Fed.R.Civ.P. 3 (“A civil action is
commenced by filing a complaint with the court.”);
Fed.R.Civ.P. 3 advisory committee's note, 1937 adoption
(“This rule provides that the first step in an action
is the filing of the complaint.”). This is true, even
where a plaintiff seeks injunctive relief. See,
e.g. Adair v. England, 193 F.Supp.2d 196, 200 (D.
D.C. 2002) (“When no complaint is filed, the court
lacks jurisdiction to entertain the plaintiff's petition
for injunctive relief.”).
McFee has not filed a complaint. The only document he filed
is a three-page letter. Additionally, McFee has not paid the
filing fee for this action and has not sought to proceed
in forma pauperis.
McFee wishes to pursue this action, he shall, within
thirty-five (35) days of the date of this Order, (1) file a
complaint and (2) either pay the $400 filing fee or file an
Application to Proceed in District Court without Prepaying
Fees or Costs. If McFee files a motion to proceed in
forma pauperis, it must be accompanied by a copy of his
prison trust account statement.
to the extent McFee seeks appointment of counsel, his request
is denied without prejudice. Although 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). To qualify, a party must be indigent and exceptional
circumstances must exist such that the denial of counsel will
result in fundamental unfairness impinging on the party's
due process rights. See DesRosiers, 949 F.2d at 23.
Here, McFee has not shown that he is indigent and has not
filed a complaint.
on the foregoing, it is hereby Ordered that:
Richard McFee wishes to pursue this action, he shall, within
thirty-five (35) days of the date of this Memorandum and
Order, (1) file a complaint and (2) either pay the $400
filing fee or file a new, fully completed Application to
Proceed in District Court Without Prepaying Fees or Costs
accompanied by a copy of his prison account statement.
Until a complaint is filed, the court lacks jurisdiction to
entertain McFee's motion, which is denied without
clerk shall send to McFee the forms for filing a complaint
and an Application to Proceed in District Court without
Prepaying Fees or Costs.
McFee fails to file a complaint and submit an application or
pay the filing fee, this action will be ...