Williams et al v. Spencer et al

Filing 6

Judge F. Dennis Saylor, IV: MEMORANDUM AND ORDER entered: The motions for leave to proceed in forma pauperis (# 2, #4) are DENIED WITHOUT PREJUDICE. If Shekeira Williams would like to pursue this action she must, within thirty-five (35) days of the date of this order, either (1) pay her portion of the filing fee ($175); or (2) file a new motion for leave to proceed in forma pauperis that complies with the requirements discussed in this Order. Failure to comply with this directive will res ult in dismissal of Shekeira as a plaintiff in this action. If Donald Williams would like to pursue this action he must, within thirty-five (35) days of the date of this order, either (1) pay his portion of the filing fee ($175); or (2) file a n ew motion for leave to proceed in forma pauperis accompanied by the required prison account statement. Failure to comply with this directive will result in dismissal of Donald as a plaintiff in this action. The Clerk shall also send a copy of this o rder to the Treasurer's Office at the prison facility in which Donald is incarcerated, in order to facilitate any request by the plaintiff for his certified prison account statement. The Clerk shall provide each plaintiff with an Application to Proceed in District Court Without Prepaying Fees or Costs. The motion for appointment of counsel (#5) is DENIED WITHOUT PREJUDICE. Summonses shall not issue pending resolution of the filing fee and an initial screening of the complaint. (PSSA, 1)[Remark: copies of Memorandum and Order set to plaintiffs along with standard IFP forms; copy of Memorandum and Order sent to Treasurer's Office at SBCC]

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
SHEKEIRA WILLIAMS and DONALD
WILLIAMS,
Plaintiffs,
v.
LUIS S. SPENCER, et al.
Defendants.

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C.A. No. 13-10083-FDS

MEMORANDUM AND ORDER
SAYLOR, J.
For the reasons stated below, the Court denies without prejudice the plaintiffs motions for
leave to proceed in forma pauperis and for appointment of counsel.
I.

Background
On January 14, 2013, Shekeira Williams (“Shekeira”) and her husband Donald Williams

(“Donald”), who is a prisoner, filed a self-prepared complaint, motions for leave to proceed in
forma pauperis, and a motion for appointment of counsel. The plaintiffs allege that Shekeira has
been wrongfully prohibited from visiting her husband after prison officials falsely accused her of
trying to introduce drugs into the prison.
Each of the plaintiffs filed a motion for leave to proceed in forma pauperis using a
standardized form. In Shekeira’s motion, she states that she is employed but did not identify her
employer or her wages. In another section of the form she states that she receives $1,000/month
from JetBlue Airways, but she does not identify it as employment income. She did not complete
or sign the second side of the form, so the Court does not have any information about her assets.
In Donald’s motion, he represents that he is not employed at the prison but does receive money
in the form of gifts from family and friends. He does not specify the amount of the gifts. He did

not sign the motion or include a prison account statement.
II.

Discussion
A.

Motions to Proceed In Forma Pauperis

A party bringing a civil action must either (1) pay the $350.00 filing 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). A motion to proceed in forma pauperis must include
“an affidavit that includes a statement of all assets such [person] possesses that the person is
unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). A litigant submitting
such an affidavit “exposes himself to ‘the pains of perjury in a case of bad faith.’” Rowland v.
California Men’s Colony, 506 U.S. 194, 205 (1993) (quoting Adkins v. E.I. DuPont de Nemours
& Co., 335 U.S. 331, 338 (1948)). “The perjury sanction thus serves to protect the public
against misuse of public funds by a litigant with adequate funds of his own . . . .” Id.
Where the plaintiff is a prisoner, the motion to proceed in forma pauperis must be
accompanied by “a certified copy of the trust fund account statement . . . 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). The Court then assesses, and when funds exist, collects from the prisoner an initial
partial filing fee of twenty percent of the average monthly deposits or the average monthly
balance in the prisoner's trust account for the six-month period immediately preceding the filing
of the complaint. See 28 U.S.C. § 1915(b)(1). The prisoner pays the rest of the filing fee over a

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period of time. See 28 U.S.C. § 1915(b)(2).1
Here, both of the motions to proceed in forma pauperis fail to meet the requirements of
28 U.S.C. § 1915(a). Shekeira failed did not clearly identify her employment income. Further,
she did not complete the second side of the form motion, which asks the applicant to identify her
assets. Without this information, the Court cannot determine whether the she qualifies for in
forma pauperis status. Donald failed to include the six-month prison account statement required
under 28 U.S.C. § 1915(a)(2). Without this statement, the Court cannot determine whether he is
unable to prepay his portion of the filing fee2 or calculate and assess an initial partial filing fee.
Finally, because neither party signed their motion, the motions do not satisfy the affidavit
requirement of 28 U.S.C. § 1915(a)(1).
B.

Appointment of Counsel

Under 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. Cir.
1991). To qualify for appointment of counsel, a party must be indigent and exceptional

1

Unlike other civil litigants, prisoner plaintiffs are not entitled to a complete waiver of the
$350.00 filing fee, notwithstanding the grant of in forma pauperis status. Based on the
information contained in the prison account statement, 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 until the entire $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).
2

Where multiple plaintiffs seek in forma pauperis status, it is the Court’s practice to
allocate the filing fee evenly between all parties. If the Court later allows Donald to proceed in
forma pauperis, he will be required to pay his half of the filing fee ($175) over time.
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circumstances must exist such that the denial of counsel will result in fundamental unfairness
impinging on the party’s due process rights. See id. To determine whether there are exceptional
circumstances sufficient to warrant the appointment of counsel, a court must examine the total
situation, focusing on the merits of the case, the complexity of the legal issues, and the litigant’s
ability to represent himself. See id. at 24.
Here, because the defendants have not responded to or even been served with the
complaint, the Court cannot yet determine whether this case presents exceptional circumstances
that would justify the appointment of pro bono counsel. The Court will therefore deny without
prejudice the motion for appointment of counsel. The plaintiffs may renew the motion after the
filing fee has been resolved and the defendants have been served with and have responded to the
complaint.
III.

Conclusion
Accordingly:
1.

The motions for leave to proceed in forma pauperis (# 2, #4) are DENIED

WITHOUT PREJUDICE.
2.

If Shekeira Williams would like to pursue this action she must, within thirty-five

(35) days of the date of this order, either (1) pay her portion of the filing fee ($175); or (2) file a
new motion for leave to proceed in forma pauperis that complies with the above-discussed
requirements. Failure to comply with this directive will result in dismissal of Shekeira as a
plaintiff in this action.
3.

If Donald Williams would like to pursue this action he must, within thirty-five

(35) days of the date of this order, either (1) pay his portion of the filing fee ($175); or (2) file a

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new motion for leave to proceed in forma pauperis accompanied by the required prison account
statement. Failure to comply with this directive will result in dismissal of Donald as a plaintiff
in this action.
4.

The Clerk shall also send a copy of this order to the Treasurer's Office at the

prison facility in which Donald is incarcerated, in order to facilitate any request by the plaintiff
for his certified prison account statement.
5.

The Clerk shall provide each plaintiff with an Application to Proceed in District

Court Without Prepaying Fees or Costs.
6.

The motion for appointment of counsel (#5) is DENIED WITHOUT

PREJUDICE.
7.

Summonses shall not issue pending resolution of the filing fee and an initial

screening of the complaint.

So ordered.
/s/ Dennis Saylor IV
F. Dennis Saylor IV
United States District Judge
Dated: January 17, 2013

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