United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Richard G. Stearns United States District Judge.
reasons set forth below, the court (1) grants plaintiff
twenty-eight days to either pay the $400 filing fee or file
an Application to Proceed in District Court Without Prepaying
Fees or Costs accompanied by a certified copy of his prison
account statement; and (2) denies without prejudice
plaintiff's motion to appoint counsel.
3, 2019, Timothy Eddington, a prisoner now incarcerated at
FMC Devens, filed a complaint seeking a declaratory judgment,
injunctive relief, and monetary damages pursuant to
Bivens v. Six Unknown Named Agents of the Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). See Docket No.
1, Complaint (“Compl.”). With the complaint,
Eddington filed a Memorandum of Law in Support of
Plaintiff's Motion for Preliminary Injunction, TRO and
Suit and a Motion to Appoint Counsel. See Docket
Nos. 2, 3.
bringing a civil action must either (1) pay the $350.00
filing fee and the $50.00 administrative fee, see 28
U.S.C. § 1914(a); or (2) seek leave to proceed without
prepayment of the filing fee, see 28 U.S.C. §
1915 (proceedings in forma pauperis).
Eddington has not paid the filing fee and has not sought
leave to proceed in forma pauperis. See
Docket. He acknowledges in the complaint that he is a
“three strikes” litigant pursuant to 28 U.S.C.
§ 1915(g). Compl. ¶ 15, p. 8; see also
Eddington v. Grondolsky, No. 16-11711-DJC, 2016 WL
6584904 (D. Mass. 2016) (collecting cases).
Eddington wishes to proceed with this action, he will be
granted additional time to either (1) pay the $400.00 filing
and administrative fees; or (2) file an application to
proceed in forma pauperis accompanied by a certified
prison account statement. Because he is a three-strikes
litigant, Eddington may only proceed in forma
pauperis if he is under imminent danger of serious
REQUESTS FOR INJUNCTIVE RELIEF
Court will not construe plaintiff's requests as a
preliminary injunction, because preliminary injunctions may
not be issued without notice to the adverse party, and no
motion has been filed by plaintiff. See Fed. R. Civ.
P. 65(a) (1). To the extent plaintiff seeks a temporary
restraining order, there is no certification in writing of
any effort plaintiff has made to provide at least informal
notice and no details as to the reasons why such notice
should not be required in view of an immediate and
irreparable need for injunctive relief. See Fed. R.
Civ. P. 65(b).
MOTION FOR APPOINTMENT OF COUNSEL
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). However, a civil
plaintiff lacks a constitutional right to free counsel.
See DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir.
1991). In order to qualify for appointment of counsel, 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 id.
plaintiff's motion will be denied because the filing fee
issue has not been determined and, at this early stage of
litigation, the court cannot yet determine whether this case
presents exceptional ...