United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Talwani United States District Judge
reasons set forth below, the Plaintiff's Motion to
Appoint Counsel [#2]; Motion for Appointment of
Marshal [#3] and Application to Proceed Without
Prepayment of Fees [#4] are denied. If Plaintiff chooses
to proceed with this action, he shall within 28 days of this
Order: (1) file a renewed Application to Proceed in District
Court Without Prepaying Fees or Costs accompanied by a
certified copy of his prison account; and (2) show cause why
the complaint should not be dismissed for lack of subject
matter jurisdiction or file an amended complaint.
Motion to Proceed In Forma Pauperis
an inmate in custody at the Old Colony Correctional Center,
filed this civil action with an Application to Proceed
Without Prepayment of Fees. However, Plaintiff 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). Accordingly, Plaintiff's Application
to Proceed Without Prepayment of Fees is denied without
prejudice. If Plaintiff elects to proceed with this action,
he must file a renewed Application accompanied by his
certified prison account statement.
is further advised that 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. If the request to proceed in forma
pauperis is granted, 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, in amounts determined based on the
information contained in the prison account statement, until
the $350.00 filing fee is paid in full. See 28
U.S.C. § 1915(b)(1)-(2). Even if the action is dismissed
upon a preliminary screening, see 28 U.S.C.
§§ 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).
Motion for Appointment of Marshal
Plaintiff has filed a motion seeking to have the court direct
the United States Marshal to find and serve the Defendant.
Title 28, section § 1915(d), of the United States Code
and Fed.R.Civ.P. 4(c)(3) require the court to “order
service by the U.S. Marshal if the plaintiff is authorized to
proceed IFP.” See Laurence v. Wall, 551 F.3d
92, 93 (1st Cir. 2008). The motion is denied as premature,
however, because Plaintiff has not yet been authorized to
proceed in forma pauperis and a summons has not
states that he has the Defendant's last known address in
Roslindale, Massachusetts, and does not know her current
address. In the event that Plaintiff files a further motion
to proceed in forma pauperis and summons are issued
for service, Plaintiff would have to provide the Marshal with
an address for service.
Motion to Appoint Counsel
28 U.S.C. § 1915, a “court may request an attorney
to represent any person unable to afford counsel.” 28
U.S.C. § 1915(e)(1). Even if a litigant establishes
financial eligibility, the litigant must demonstrate
“that exceptional circumstances [are] present such that
a denial of counsel [is] likely to result in fundamental
unfairness impinging on his due process rights.”
DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir.
1991). Here, Plaintiff has not yet established that he is
financially eligible for appointment of counsel and
demonstrated exceptional circumstances, and accordingly the
motion is denied as premature.
Plaintiff's Complaint Fails to State a Claim for Which
this Court has Jurisdiction
Plaintiff alleges that Gladymir Belizaire is the mother of
his minor son, that she kicked him out of the house on
January 23, 2012, and that she was abusive to both Plaintiff
and Plaintiff's minor son from 2009 through 2012. The
introduction to the complaint states that this lawsuit is,
among other things, “about civil rights, pain and
suffering, emotional distress, abuse, discrimination,
defamation, . . .” The civil cover sheet accompanying
the complaint lists the cause of action as “US §
1983.” Both the complaint and civil cover sheet
indicate that Plaintiff is seeking damages in the amount of
$4, 000, 000.
courts are courts of limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,
377 (1994). Consequently, a plaintiff who seeks to bring his
suit in a federal forum bears the burden of establishing that
the federal court has subject-matter jurisdiction. See
Gordo-González v. United States, 873 F.3d 32, 35
(1st Cir. 2017). The basic federal jurisdiction statutes, 28
U.S.C. §§ 1331, 1332, confer “federal
question” and “diversity” jurisdiction,
the allegations of the complaint are accepted as true, there
is no allegation that the parties are diverse for purposes of
diversity jurisdiction under 28 U.S.C. §1332. Moreover,
no federal question is raised pursuant to 28 U.S.C.
§1331. To the extent Plaintiff complains of the
violation of his civil rights, the complaint fails to state a