Abubardar v. Sullivan

Filing 6

Chief Judge Mark L. Wolf: MEMORANDUM AND ORDER entered: Plaintiff's Motion for Leave to Proceed in forma pauperis (Docket No. 2) is ALLOWED. Plaintiff is obligated to make payments toward the filing fee pursuant to 28 U.S.C. § 1915(b)(2); Plaintiff's Motion to Waive Filing Fee (Docket No. 4) is DENIED to the extent that Plaintiff seeks a complete waiver of the $350.00 filing fee in lieu of making payments in accordance with 28 U.S.C. §1915(b). The motion is ALLOWED onl y to the extent that Plaintiff may proceed in forma pauperis and may elect to have the United States Marshals Service advance the costs of service. The Clerk shall issue summonses with respect to defendant Michael A. Sullivan. The Clerk shall send th e summons, a copy of the complaint, and copy of this Memorandum and Order to the plaintiff, who must thereafter serve the defendant in accordance with Federal Rule of Civil Procedure 4(m). The plaintiff may elect to have service made by the United S tates Marshals Service. If directed by the plaintiff to do so, the United States Marshals shall serve the summons, a copy of the complaint, and a copy of this Memorandum and Order upon the defendant, in the manner directed by the plaintiff, with all costs of service to be advanced by the United States Marshals Service. Notwithstanding Fed. R. Civ. P. 4(m) and Local Rule 4.1, the plaintiff shall have 120 days from the date of this Order to complete service. (PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
RAHEEM RASHEED ABUBARDAR,
Plaintiff,
v.
MICHAEL A. SULLIVAN,
Defendant.

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Civil Action No. 11-12337-MLW
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MEMORANDUM AND ORDER
WOLF, D.J.
I.

January 11, 2012

INTRODUCTION
On December 30, 2011, Plaintiff Raheem Rasheed Abubardar

("Abubardar"), a prisoner in custody at MCI Norfolk in Norfolk,
Massachusetts, filed a self-prepared civil rights Complaint under
42 U.S.C. §1983 against Clerk-Magistrate Michael A. Sullivan.
Among other things, Abubardar alleges that the defendant denied him
access to the state courts in violation of his First and Fourteenth
Amendment rights, because the defendant twice refused to file and
docket Abubardar's motion in his state civil action pending in the
Middlesex Superior Court.

This refusal to accept Abubardar's

pleading was made notwithstanding that his motion was filed at the
direction of the Massachusetts Appeals Court.1

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Abubardar seeks

Abubardar alleges that on August 24, 2011, the Massachusetts
Appeals Court ("MAC") revised its initial decision denying his
appeal, and granted a partial decision remanding his case back to
the Middlesex Superior Court for further proceedings. Abubardar
further alleges that the defendant failed to comply with the MAC
decision for remand, prompting him to file a motion for an order

declaratory relief, as well as monetary damages.
Along with the Complaint, Abubardar filed a Motion for Leave
to

Proceed

forma

in

pauperis

along

with

his

prison

account

statement (Docket No. 2), and a Motion to Waive Filing Fee (Docket
No. 4).
II.

DISCUSSION
A.

The Motions for Leave to Proceed In Forma Pauperis and
to Waive Filing Fee

Upon review of Abubardar's financial disclosures and prison
account statement, this court finds that he lacks sufficient funds
to pay the $350.00 filing fee for this civil action.

Accordingly,

his Motion for Leave to Proceed in forma pauperis (Docket No. 2)
will be ALLOWED.
However, because Abubardar is a prisoner he is obligated to
make payments toward the $350.00 filing fee, pursuant to the Prison
Litigation Reform Act.
statute).

See 28 U.S.C. §1915 (the in forma pauperis

Abubardar's prison account statement indicates that he

he has been almost entirely without funds from January, 2011 to
October, 2011.

Accordingly, this court will not assess an initial

partial filing fee; however, pursuant to 28 U.S.C. §1915(b)(2),
Abubardar is obligated to make monthly payments of 20 percent of

compelling the defendant to comply with the directives of the MAC.
The MAC denied the motion without prejudice and ordered Abubardar
to file his motion in the Middlesex Superior Court.
Abubardar
claims that on December 2, 2011, he complied with the MAC's
directive, and his pleadings were received by the defendant on
December 5, 2011.
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the preceding month's income credited to his account until the
statutory filing fee of $350.00 has been paid in full.
Accordingly, to the extent that Abubardar seeks a complete
waiver of the $350.00 filing fee in lieu of making payments in
accordance with 28 U.S.C. §1915(b)(2), the Motion to Waive the
Filing Fee (Docket No. 4) will be DENIED.

This motion is ALLOWED,

however, to the extent that Abubardar may proceed in forma pauperis
and may elect to have the United States Marshals Service advance
the costs of service.
This order is made apart from any other assessments made in
other civil actions filed by Abubardar;2 however, for purposes of
clarification for crediting any funds received from Abubardar, this
court intends that any funds received from his prison account first
be applied to any prior Order of a Court assessing a filing fee
pursuant to 28 U.S.C. §1915.
B.

Issuance of Summonses; Service by the United States
Marshals

After a preliminary screening pursuant to 28 U.S.C. §§1915(e)
and 1915A, the court will permit this action to proceed at this
time, and will direct the Clerk to issue a summons and the United
States Marshals Service to effect service, as set forth below.

2

See, e.g., Abubardar v. Ladouceur, et al., Civil Action No.
08-11152-NMG; and Abubardar v. Doyle, Civil Action No. 08-10916NMG.
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III. CONCLUSION
Based on the foregoing, it is hereby ORDERED that:
1.

Plaintiff's Motion for Leave to Proceed in forma pauperis
(Docket No. 2) is ALLOWED. Plaintiff is obligated to make
payments toward the filing fee pursuant to 28 U.S.C.
§ 1915(b)(2);

2.

Plaintiff's Motion to Waive Filing Fee (Docket No. 4) is
DENIED to the extent that Plaintiff seeks a complete waiver of
the $350.00 filing fee in lieu of making payments in
accordance with 28 U.S.C. §1915(b). The motion is ALLOWED
only to the extent that Plaintiff may proceed in forma
pauperis and may elect to have the United States Marshals
Service advance the costs of service.

3.

The Clerk shall issue summonses with respect to defendant
Michael A. Sullivan.

4.

The Clerk shall send the summons, a copy of the complaint, and
copy of this Memorandum and Order to the plaintiff, who must
thereafter serve the defendant in accordance with Federal Rule
of Civil Procedure 4(m).
The plaintiff may elect to have
service made by the United States Marshals Service.
If
directed by the plaintiff to do so, the United States Marshals
shall serve the summons, a copy of the complaint, and a copy
of this Memorandum and Order upon the defendant, in the manner
directed by the plaintiff, with all costs of service to be
advanced
by
the
United
States
Marshals
Service.
Notwithstanding Fed. R. Civ. P. 4(m) and Local Rule 4.1, the
plaintiff shall have 120 days from the date of this Order to
complete service.

/s/ Mark L. Wolf
UNITED STATES DISTRICT JUDGE

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