Kelsey v. Norfolk State Prison et al

Filing 19

Chief Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER In view of the foregoing, it is hereby ORDERED that: 1. Plaintiff1s Motions for Leave to Proceed in forma pauperis (Docket No's. 2, 11) are ALLOWED. 2. Pursuant to 28 U.S.C. § 1915(b) (2) Plaintiff shall make monthly payments of 20 percent of his preceding month's 6 income credited to the prisoner's account until the statutory filing fee has been paid in full. 3. Plaintiff's Motions to Appoint Counsel (Doc ket No's. 5, 3, 12) are DENIED without prejudice. 4. Plaintiff's Motion to Amend Complaint (Docket No. 10) is ALLOWED. 5. The Clerk shall issue summonses and the United States Marshal shall serve a copy of the summonses, Amended Complain t, Motion to Supplement, Amended Complaint and this order upon defendants UMass Correctional Health, Rebecca Lubelczyk, Kinga Cetera, Gary Roden, Maureen Atkins, Lawrence Weiner, Peter Hefferman and Commissioner Luis Spencer. 6. The claims in the original Complaint against defendants Cynthia Summer, Umass Medical Center, MHM Correctional, Inc., Jamie Chapman, Stanley Galas, Ellen Kurtz and Herbert Ddungo are DISMISSED. 7. Plaintiff's Motion for Extension of Time to Amend (Docket No. 1 3) is MOOT. 8. Plaintiff's Motions to Supplement, Amend Complaint (Docket No's. IS, 16) are ALLOWED. 9. Within 42 days of the date of the this Memorandum and Order Plaintiff shall show cause why his claims against the Norfolk State Prison and Commissioner Spencer should not be dismissed.(Hohler, Daniel)

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

MICHAEL KELSEY,

Plaintiff,
C.A. No. 12-10029-MLW

v.
REBECCA LUBELCZYK, ET AL.,
Defendants.
MEMORANDUM AND ORDER
WOLF,
I.

D.J.

September 25, 2012

INTRODUCTION
This is a pro se action for injunctive relief and damages

resul ting from the alleged violation of Michael Kelsey's (II Kelseyll)
Eighth Amendment rights. Kelsey alleges that defendants, various
prison officials and employees, have violated his Eighth Amendment
rights by refusing to provide the adequate medical care necessary
to treat his serious medical condition.
In connection with this action, Kelsey has filed:
for Leave to Proceed in forma pauperis

(Docket No's. 2, 11);

Motions to Appoint Counsel (Docket No's. 5, 3, 12);
Amend Complaint (Docket No. 10);
to Amend

(Docket No.

13);

and

(a) Motions
(b)

(c) Motion to

(d) Motion for Extension of Time
(e)

Motions to Supplement,

Amend

Complaint (Docket No's. 15, 16).1 For the reasons set forth below,
the

Motions

for

Leave

to

Proceed

in

forma

pauperis

are

being

1 Docket No.
15 does not have a caption. The Motion,
however, appears to supplement the allegations in the pleadings.
Therefore, the court is construing the Motion as one to
supplement the record.

allowed,

the Motions to Appoint Counsel are being denied without

prejudice,

the Motion to Amend Complaint is being allowed,

the

Motion for Extension of Time to Amend is moot, and the Motions to
Supplement, Amend Complaint are being allowed.

II.

BACKGROUND AND PROCEDURAL HISTORY
Kelsey is a state prisoner in custody at MCI - Norfolk. On

January 5, 2012, he filed a pro se civil rights complaint against
MHM Correctional, Inc., several prison officials and employees, as
well

as

medical

defendants

personnel.

have,

with

The

Complaint

deliberate

alleges

indifference,

that

refused

the
to

adequately treat Kelsey's serious medical need and, have therefore
subjected him to cruel and unusual punishment in violation of the
Eight Amendment. As of September 25,

2012,

the Complaint had not

been served.
On May 8, 2012, Kelsey filed a Motion to Amend the Complaint.
The proposed Amended Complaint supplements the factual allegations
in the

pleadings

and modifies

the

parties

to

the

action.

The

proposed Amended Complaint omits defendants Cynthia Summer, UMass
Medical Center,

MHM Correctional,

Inc.,

Jamie Chapman,

Stanley

Galas, Ellen Kurtz and Herbert Ddungo, and adds UMASS Correctional
Health, Lawrence Weiner, Peter J. Hefferman and Luis S. Spencer as
defendants in this matter.

2

III. LEGAL STANDARD
Prisoners

are

subject

to

the

provisions

of

the

Prison

Litigation Reform Act of 1995 ("PLRA"), 110 Stat. 1321-75. The PLRA
places a

series of controls on prisoner suits.

Switzer,

131

treatment

of

S.Ct.

1289,

actions

in

1290

(2011).

forma pauperis

The

See Skinner v.

PLRA

governs

and authorizes

the

federal

courts to dismiss such actions if they lack an arguable basis in
law or in fact, or if they fail to state a claim on which relief
may be granted. See 28 U.S.C. §1915 (e) (2)
U.S.

319,

courts

to

325

(1989).

review

In addition,

prisoner

i

Neitzke v. Williams, 490

the PLRA authorizes federal

complaints

that

seek

redress

from

governmental entities, or their officers or employees, and provides
for dismissal of the action if it lacks an arguable basis in law or
fact,

fails to state a claim,

or seeks relief from a defendant

immune from such relief. See 28 U.S.C. §1915A.
IV.

ANALYSIS
A.

Motions to Proceed In Forma pauperis

A party bringing a
$350.00

filing

fee

when

civil action must either:

(1)

pay the

filing

(2)

file

the

complaint i

or

an

application to proceed without prepayment of fees.

See 28 U.S.C.

§§1914(a)

prisoner,

and

1915.

Where

the

plaintiff

is

a

an

application for waiver of prepayment of the filing fee must be
accompanied by a document certifying the amount of funds on deposit
to the plaintiff's credit at his institution of incarceration. See
3

28

U.S.C.

pauperis

§1915(a) (2).
status,

a

Notwithstanding

the

prisoner who brings

a

grant
civil

of

in

action

forma
is

not

entitled to a waiver of the $350 filing fee and is required to pay
the full amount. See

§1915(b) (A). However,

such payments may be

made in installments, payable through prison accounts in accordance
with the provisions of §1915(b). See id.
The

court

has

reviewed

Kelsey's

motions

and

accompanying

prison account statement. As Kelsey has met the requirements for in
forma pauperis status, the Motions are being allowed. Pursuant to
28 U.S.C. §1915(b) (2), Kelsey must make monthly payments of twenty
percent of his preceding month's income until the statutory filing
fee has been paid in full.
B.

Motions to Amended the Complaint, Supplement the Record
and for Extension of Time

Pursuant to the Federal Rules of Civil Procedure, a party may
amend its pleadings once as a matter of course within 21 days after
serving it. See Fed. R. Civ. P. 15(a) (1). Here, the Complaint has
not

been

Complaint

served.
as

a

Therefore,

matter of

Kelsey

course

and

is

entitled

the

Motion

to

amend

his

to Amend

the

Center,

MHM

Complaint is being allowed.
Defendants

Cynthia

Summer,

UMass

Medical

Correctional, Inc., Jamie Chapman, Stanley Galas, Ellen Kurtz and
Herbert Ddungo were named in the Complaint but are not parties in
the Amended Complaint.

Therefore,

parties to the case.
4

they are

being dismissed as

In view of the foregoing, the Motion for Extension of Time to
Amend the Complaint is moot.
Pursuant

to Fed.

R.

Civ.

P.

15(d),

the court

is allowing

Kelsey's Motions to Supplement, Amend Complaint and the allegations
in each will supplement the Amended Complaint.
C.

Motions for Appointment of Counsel

A civil plaintiff does not have a constitutional right to free
counsel.
However,

Desrosiers v. Moran,

949 F.2d IS,

under certain circumstances,

23

(1st Cir. 1991).

the court "may request an

attorney to represent any person unable to afford counsel.

II

28

U.S.C. §1915(e) (1). In order to qualify for appointment of counsel
in a civil case:

(1) a party must be indigent; and (2) exceptional

circumstances must exist such that denial of counsel would result
in fundamental

unfairness

impinging on the party s
I

due process

rights. See Desrosiers, 949 F.2d at 23.
At

this

time,

the

court

finds

no

such

exceptional

circumstances. However, the court may more adequately evaluate the
merits of this Motion after the defendants respond to the Amended
Complaint. Accordingly, Kelsey's Motions for Appointment of Counsel
are being denied without prejudice.
D.

Order to Show Cause

Defendants

Norfolk

State

Spencer are being dismissed.

Prison and
The

claims

Commissioner
against

Luis

S.

Norfolk State

Prison are subject to dismissal because, as a building, it is not
subject to suit. See Smith v. Knox County Jail, 666 F.3d 1037, 1040
5

(7th Cir. 2012) (stating that defendant, Knox County Jail, is a non­
suable entity) . The claims against Commissioner Spencer are subj ect
to

dismissal

because

the

Amended

Complaint

does

not

allege

sufficient facts to support a claim against him. Liability under
§1983 is direct, not vicarious. See Pinto v Nettleship,
120, 132 (1st Cir. 1984)
officials

who

were

held

liable

solely

(§1983 liability can only be imposed on

involved

constitutional rights).
on

737 F.2d

personally

in

the

deprivation

of

Because supervisory officials cannot be
the

basis

relationship with a tortfeasor,

of

their

employer-employee

and Kelsey has not alleged that

Commissioner Spencer personally did anything to contribute to his
injuries, the Amended Complaint fails to state a valid §1983 claim
against Spencer.
However,

"a pro se plaintiff who makes a pleading gaffe in a

complaint deserves an opportunity to offer a curative amendment
before" dismissal. Smith, 666 F.3d at 1040. Accordingly, the court
is providing Kelsey with the opportunity to show cause why his
claims against Norfolk State Prison and Commissioner Spencer should
not be dismissed.
V.

ORDER
In view of the foregoing, it is hereby ORDERED that:
1.

Plaintiff1s

Motions

for

Leave

to

Proceed

in

forma

pauperis (Docket No's. 2, 11) are ALLOWED.
2.

Pursuant to 28 U.S.C. § 1915(b) (2) Plaintiff shall make
monthly payments of 20 percent of his preceding month's
6

income

credited

to

the

prisoner's

account

until

the

statutory filing fee has been paid in full.
3.

Plaintiff's Motions to Appoint Counsel (Docket No's. 5,
3, 12) are DENIED without prejudice.

4.

Plaintiff's Motion to Amend Complaint (Docket No. 10) is
ALLOWED.

5.

The Clerk shall issue summonses and the United States
Marshal shall serve a

copy of the summonses,

Amended

Complaint, Motion to Supplement, Amended Complaint and
this order upon defendants UMass Correctional Health,
Rebecca Lubelczyk,

Kinga

Cetera,

Gary Roden,

Maureen

Atkins, Lawrence Weiner, Peter Hefferman and Commissioner
Luis Spencer.
6.

The claims in the original Complaint against defendants
Cynthia Summer, Umass Medical Center, MHM Correctional,
Inc.,

Jamie

Chapman,

Stanley Galas,

Ellen

Kurtz

and

Herbert Ddungo are DISMISSED.
7.

Plaintiff's Motion for Extension of Time to Amend (Docket
No. 13) is MOOT.

8.

Plaintiff's

Motions

to

Supplement,

Amend

Complaint

(Docket No's. IS, 16) are ALLOWED.
9.

Within 42 days of the date of the this Memorandum and
Order Plaintiff shall show cause why his claims against
the Norfolk State Prison and Commissioner Spencer should
not be dismissed.
7

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TATES

UNITED

8