Delacruz v. Spencer et al

Filing 9

Judge Denise J. Casper: MEMORANDUM AND ORDER entered: Plaintiffs Motion for Leave to Proceed in forma pauperis (D. 3) is ALLOWED and the filing fee is assessed pursuant to 28 U.S.C. § 1915(b). The Clerk shall issue summonses as to defendants Spe ncer and Mici.The Clerk shall send the summonses, complaint, and this Memorandum and Order to the plaintiff, who must thereafter serve the defendants in accordance with Federal Rule of Civil Procedure 4(m). The plaintiff may elect to have service ma de by the U.S. Marshal Service. If directed by the plaintiff to do so, the U.S. Marshal Service shall serve the summonses, complaint and this Memorandum and Order upon the defendants in the manner directed by the plaintiff, with all costs of service to be advanced by the U.S. Marshal Service. Notwithstanding Fed. R. Civ. P. 4(m) and Local Rule 4.1, the plaintiff shall have 120 days from the date of this Memorandum and Order to complete service. Plaintiff's Motion for Appointment of Counsel (D. 2) is DENIED without prejudice. Plaintiff's Motion for Writ of Habeas Corpus Ad Testificandum (D. 4) is DENIED as premature. (PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOSE DELACRUZ,
Plaintiff,
v.

CIVIL ACTION
NO. 13-10327-DJC

LUIS S. SPENCER, ET AL.,
Defendants.

MEMORANDUM AND ORDER
CASPER, J.
I.

MARCH 17 , 2013

Introduction
On February 15, 2013, plaintiff Jose Delacruz, a prisoner transferred from a Massachusetts

state prison to a state prison in Trenton, New Jersey, filed a civil rights complaint against the
Commissioner of the Department of Correction (“DOC”) and the Deputy Commissioner of
Classification for the DOC. Plaintiff claims, inter alia, that his transfer to an out-of-state prison was
made without due process and denied him access to the courts. He seeks declaratory and injunctive
relief (in the form of transfer back to a Massachusetts prison), as well as monetary damages.
Along with the complaint, plaintiff filed a Motion for Leave to Proceed in forma pauperis
(D. 3), a Motion to Appoint Counsel (D. 2), and a Motion for writ of habeas corpus ad testificandum
(D. 4).
II.

Discussion
A.

The Motion for Leave to Proceed In Forma Pauperis

Upon review of the plaintiff’s financial disclosures, this Court finds that he lacks sufficient
funds to pay the $350.00 filing fee for this action. Accordingly, his Motion for Leave to Proceed

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in forma pauperis (D. 2) will be ALLOWED. However, because the plaintiff is a prisoner, he is
obligated to make payments toward the $350.00 filing fee, pursuant to the Prison Litigation Reform
Act. See 28 U.S.C. § 1915 (the in forma pauperis statute). Accordingly, this Court will Order that:
1.

Plaintiff pay an initial partial filing fee of $260.82, pursuant to 28 U.S.C.
§ 1915(b)(1)(A); 1

2.

The remainder of the fee $89.18 is to be assessed and collected in accordance
with 28 U.S.C. § 1915(b)(2).

This assessment is made apart from any other assessments made in other civil actions filed
by the plaintiff (if any); however, for purposes of clarification for crediting any funds received from
the plaintiff, this Court intends that any funds received from plaintiff’s prison account first be
applied to any prior Order of a court assessing a filing fee pursuant to 28 U.S.C. § 1915.
B.

Order for the Issuance of a Summons and Service by the U.S. Marshal Service

Upon a preliminary screening pursuant to 28 U.S.C. § 1915(e), this Court will permit this
action to proceed at this time and will direct the Clerk to issue summonses as to defendants Luis S.
Spencer and Carol A. Mici. This Court will also direct the U.S. Marshal Service to effect service
of process as set forth below.

C.

The Motion for Appointment of Counsel

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The initial partial assessment represents 20% of the average monthly deposits in the
plaintiff’s prison account for a six-month period (June, 2012 to December, 2012). This calculation
was manually prepared based on the prison account statement submitted and is made without
prejudice to the plaintiff seeking reconsideration using some other certified account information
data under the formula set forth in 28 U.S.C. § 1915(b). Further, the initial partial filing fee is made
notwithstanding that plaintiff currently may not have sufficient funds in his prison account to pay
it. The in forma pauperis statute requires the initial partial filing fee be assessed but collection to
occur “when funds exist.” 28 U.S.C. § 1915(b)(1).
2

Under section 1915 of Title 28, the Court “may request an attorney to represent any person
unable to afford counsel.” 28 U.S.C. §1915(e)(1). The United States Court of Appeals for the First
Circuit provides the following set of factors to consider when determining whether to appoint
counsel to an indigent under § 1915: “[1] the indigent’s ability to conduct whatever factual
investigation is necessary to support his or her claim; [2] the complexity of the factual and legal
issues involved; and [3] the capability of the indigent litigant to present the case.” Cookish v.
Cunningham, 787 F.2d 1, 3 (1st Cir. 1986) (per curiam). Ultimately, to be eligible for this
assistance plaintiff “must demonstrate that he [is] indigent and that exceptional circumstances [are]
present such that a denial of counsel [is] likely to result in fundamental unfairness impinging on his
due process rights.” DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991).
Here, the Court deems plaintiff to be unable to afford counsel. Nevertheless, at this juncture
and on this record this Court cannot find that exceptional circumstances exist to appoint pro bono
counsel, particularly where the merits of his claims are uncertain and the claims do not appear to
involve novel or complex issues of fact or law. In short, absent a response from the defendants the
expenditure of the Court’s scarce pro bono resources cannot be justified. Accordingly, plaintiff’s
Motion for Appointment of Counsel (D. 3) will be DENIED without prejudice to renew after the
defendants have filed a responsive pleading and upon good cause shown in light of the response.
D.

The Motion for Writ of Habeas Corpus Ad Testificandum

Plaintiff’s Motion for Writ of Habeas Corpus Ad Testificandum (D. 4) will be DENIED as
premature. If and/or when plaintiff’s physical presence is required in this Court for a conference
or hearing, a writ of habeas corpus will issue at that time.

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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 (D. 3) is ALLOWED and the
filing fee is assessed pursuant to 28 U.S.C. § 1915(b).

(2)

The Clerk shall issue summonses as to defendants Spencer and Mici.

(3)

The Clerk shall send the summonses, complaint, and this Memorandum and Order to the
plaintiff, who must thereafter serve the defendants in accordance with Federal Rule of Civil
Procedure 4(m). The plaintiff may elect to have service made by the U.S. Marshal Service.
If directed by the plaintiff to do so, the U.S. Marshal Service shall serve the summonses,
complaint and this Memorandum and Order upon the defendants in the manner directed by
the plaintiff, with all costs of service to be advanced by the U.S. Marshal Service.

(4)

Notwithstanding Fed. R. Civ. P. 4(m) and Local Rule 4.1, the plaintiff shall have 120 days
from the date of this Memorandum and Order to complete service.

(5)

Plaintiff’s Motion for Appointment of Counsel (D. 2) is DENIED without prejudice.

(6)

Plaintiff’s Motion for Writ of Habeas Corpus Ad Testificandum (D. 4) is DENIED as
premature.

SO ORDERED.

/s/ Denise J. Casper
Denise J. Casper
U.S. District Judge

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