United States District Court, D. Massachusetts
NATHANIEL M. GORTON UNITED STATES DISTRICT JUDGE.
Plaintiff Timmy Hem's (“Hem”) motion for
leave to proceed in forma pauperis (ECF No. 6) is
hereby allowed. Pursuant to 28 U.S.C. § 1915(b)(1)(B),
the Court assesses an initial partial filing fee of
$36.60. The remainder of the fee, $313.40, shall
be collected in accordance with 28 U.S.C. § 1915(b)(2).
The Clerk shall send a copy of this Order to the
Treasurer's Office at the South Bay House of Correction,
along with the standard Notice to Prison form.
Hem's Motion for Appointment of Counsel (ECF No. 2) is
DENIED without prejudice. The Court may request an
attorney to represent Hem if it finds that: (1) he is
indigent; and, (2) exceptional circumstances exist such that
the denial of counsel will result in a fundamental unfairness
impinging on his due process rights. DesRosiers
v. Moran, 949 F.2d 15, 23 (1st Cir. 1991);
28 U.S.C. 1915(e)(1). At this stage of the proceedings,
Hem's motion is premature, and he has not yet
demonstrated “exceptional circumstances” that
warrant appointment of counsel.
court construes the amended complaint (ECF No. 8) and
complaint (ECF No. 1) together, and pursuant to 28 U.S.C.
§1915(e)(2)(B)(iii), defendant Chelsea District Court is
hereby DISMISSED from this action because, as an arm
of the state it enjoys sovereign immunity under the Eleventh
Amendment to United States Constitution. Whalen
v. Massachusetts Trial Court, 397 F.3d 19,
28-30 (1st Cir. 2005) (holding that state court was entitled
to Eleventh Amendment immunity). The Chelsea District court
cannot be sued for monetary damages in this Court for alleged
civil rights violations under 42 U.S.C. §1983.
shall have until December 10, 2019 to file an amended
complaint to the extent that he seeks to assert plausible
claims, if any, against other possible defendants, otherwise
this action will be DISMISSED without prejudice. Any
amended complaint is subject to screening pursuant to 28
U.S.C. §1915(e) and 28 U.S.C. §1915A.
amending his complaint in this action, Hem is reminded that
the Federal Rules of Civil Procedure must be followed. Under
the Rules, an amended complaint must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief, ” Fed.R.Civ.P. 8(a)(2), and
“‘give [each] defendant fair notice of what the .
. . claim is and the grounds upon which it rests.'”
Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957). That is, a “complaint should at
least set forth minimal facts as to who did what to whom,
when, where, and why-although why, when why means the
actor's state of mind, can be averred generally.”
Educadores Puertorriqueños en Acción
v. Hernandez, 367 F.3d 61, 68 (1st Cir.
2004). The claims must be “set forth in numbered
paragraphs, each limited as far as practicable to a single
set of circumstances.” Fed.R.Civ.P. 10(b). Because it
promotes clarity, “each claim founded on a separate
transaction or occurrence. . . must be stated in a separate
count.” Id. While detailed factual allegations
are not required, Hem must set forth as to each
defendant what he claims they did (or failed to do),
where it occurred, when it occurred, and
the relief he seeks as to each defendant separately.
Put another way, the amended complaint must clearly identify
the claims and relief Hem seeks as to each defendant, and
provide sufficient factual bases for each of the elements of
the claims that he asserts. The Court also notes the
“[t]he title of the complaint must name all the
parties.” Fed.R.Civ.P. 10(a). While the amended
complaint may include exhibits that are relevant to the
claims, see Fed.R.Civ.P. 10(c), use of exhibits is not
required, and does not excuse Hem of his responsibility to
clearly set forth the relevant allegations in the body of the
amended complaint. That is, he may not incorporate by
reference affidavits or other documents in place of well
pleaded allegations. Because an amended complaint completely
replaces the original complaint, and is a stand-alone
document, Hem should repeat in his amended complaint any
allegations in the original complaint that he wishes to be
part of the operative amended complaint. See Connectu
LLC v. Zuckerberg, 522 F.3d 82, 91
(1st Cir. 2008) (“An amended complaint, once filed,
normally supersedes the antecedent complaint.. . .
Thereafter, the earlier complaint is a dead letter and no
longer performs any function in the case.”) (citations
and quotations omitted). He may not, for example,
incorporate by reference allegations from the prior complaint
into the amended complaint. Hem must sign the amended
complaint. Fed R. Civ. P. 11(a). The amended complaint will
be further screened pursuant to 28 U.S.C. §1915(e).
Summonses shall not issue pending further order of the Court.
Failure to comply with this Order will result in dismissal of
 Because Hem is a prisoner-plaintiff,
his motion to proceed in forma pauperis must be
accompanied by “a certified copy of the trust fund
account statement . . . 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” so that the court may determine the
initial partial filing fee and subsequent monthly payments
required for the filing fee. 28 U.S.C. § 1915(a)(2),
(b). Hem only included information from April 2019 through
August 2019 which appears to be Hem's total duration of
incarceration. Accordingly, the Court calculates Hem's
filing fee obligation based upon the information provided for
this period prior to the filing of this action. The Court
also notes that the most ...