Snyder v. South Middlesex Correctional Center et al

Filing 38

Judge William G. Young: ORDER entered denying 2 Motion to Appoint Counsel ; granting 3 Motion for Leave to Proceed in forma pauperis; denying 18 Motion ; denying 19 Motion ; denying 20 Motion ; denying 27 Motion ; denying 32 Moti on ; denying 36 Motion. South Middlesex Correctional Center shall be dismissed as a defendant. Summonses shall issue as to the defendants in the original complaint, with the exception of South Middlesex Correctional Center. The United States Mar shals Service shall serve a copy of the summonses, complaint, and this order upon the defendants as directed by plaintiff with all costs of service to be advanced by the United States. The plaintiff shall have 120 days from the date of this order to serve the original complaint. However, the plaintiff if not required to serve the original complaint within 120 days from the date of this order if she files an amended complaint within 42 days of the date of this order. The amended complaint shall be subject to an initial screening. (PSSA, 3)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOANNA M. SNYDER,
Plaintiff,
v.
SOUTH MIDDLESEX CORRECTIONAL
CENTER,
Defendants.

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CIVIL ACTION
NO. 13-11013-WGY

MEMORANDUM AND ORDER
YOUNG, D.J.

November 4, 2013

For the reasons set forth below, the Court grants the
plaintiff’s motion for leave to proceed in forma pauperis,
directs the plaintiff to file an amended complaint, orders that
summonses issue, and denies other motions.
I.

Background
Joanna M. Snyder brings this action concerning her access to

religious materials while she was incarcerated at the South
Middlesex Correctional Center (“SMCC”).

In her original

complaint (#1), she names as defendants SMCC, members of SMCC’s
staff, and Massachusetts Commissioner of Correction Louis
Spencer.

Since the filing of the original complaint, Snyder has

filed numerous letters and a “Motion to Add Facts” (#20) in which
she complains of additional mistreatment by members of the staff
of MCI Framingham, where Snyder is currently incarcerated.

She

also filed a “supplemental complaint” (#11) in which she claims
that, since the filing of the original complaint, seven

individuals who were not defendants in the original complaint
have illegally inspected her mail, violated state regulations
concerning prison disciplinary hearing procedures, and classified
her as a “skinhead.”

In her two additional motions to add

defendants (##27, 32), Snyder seeks to add additional defendants,
factual allegations, and claims.
Snyder has also filed a motions for leave to proceed in
forma pauperis (#3), for appointment of counsel (#2), for service
by first class mail (#18), to add another plaintiff and litigate
on his behalf (#19), and to preserve evidence (#36).
II.

Discussion
A.

Motion for Leave to Proceed In Forma Pauperis

Upon review of the plaintiff’s motion for leave to proceed
in forma pauperis, the Court concludes that the plaintiff is
without income or assets to prepay the $350 filing fee.
Accordingly, the motion is GRANTED.

Pursuant to 28 U.S.C.

§ 1915(b)(1), the Court assesses an initial partial filing fee of
$53.85.

The rest of the filing fee, $296.15, shall be paid in

accordance with 28 U.S.C. § 1915(b)(2).
B.

Filing of an Amended Complaint

As noted above, the docket is full of the plaintiff’s
attempts–-through a “supplemental complaint,” letters, and
motions–-to add parties and claims to the original complaint.
However, a complaint cannot be amended in a piecemeal fashion.
“An amended complaint, once filed, normally supersedes the
antecedent complaint.”

Connectu LLC v. Zuckerberg, 522 F.3d 82,
2

91 (1st Cir. 2008).

“Thereafter, the earlier complaint is a dead

letter and ‘no longer performs any function in the case.’” Id.
(quoting Kolling v. Amer. Power Conversion Corp., 347 F.3d 11, 16
(1st Cir. 2003)).

While the Federal Rules of Civil Procedure do

allow for supplemental pleadings concerning events that “happened
after the date of the pleading to be supplemented,” supplemental
pleadings are permitted only “[o]n motion and reasonable notice.”
Fed. R. Civ. P. 15(d).

Snyder’s “supplemental complaint” was not

filed with permission of the Court.
At this point, the only operative pleading in this case is
the original complaint.

If Snyder wishes to amend her original

complaint, she must file an amended complaint that includes all
of the parties, factual allegations, and legal claims that she
wishes to be part of the operative complaint.

The Court will not

cobble together her numerous submissions to create an operative
complaint.

The Court will give Snyder forty-two days to file an

amended complaint, if she so desires.

If she wishes to further

amend or supplement the complaint after that point, she must do
so in accordance with Rule 15 of the Federal Rules of Civil
Procedure.
Any amended complaint must comply with the Federal Rules of
Civil Procedure concerning the joinder of claims and parties.
See Fed. R. Civ. P. 18, 20.

The pleading must also comply with

Rule 8(a) of the Federal Rules of Civil Procedure, which requires
that the a complaint include “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
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Fed. R.

Civ. P. 8(a)(2).

At a minimum, the complaint must give each

defendant “fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.”

Calvi v. Knox County, 470 F.3d

422, 430 (1st Cir. 2006) (quoting Educadores Puertorriqueños en
Acción v. Hernández, 367 F.3d 61, 66 (1st Cir.

2004)).

The

plaintiff’s obligation to provide the grounds of his claim
“requires more than labels and conclusions.”
v. Twombly, 550 U.S. 544, 555 (2007).

Bell Atlantic Corp.

A court is not “bound to

accept as true a legal conclusion couched as a factual
allegation,” and “[f]actual allegations must be enough to raise a
right to relief above the speculative level.”

Id. (quoting in

part Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals
of a cause action, supported by mere conclusory statements, do
not suffice.”).

To the extent that Snyder asserts claims under

42 U.S.C. § 1983, she must allege facts from which the Court may
reasonably infer that the named defendants were personally
involved in any alleged violation of federal rights.
Rivera v. Fagundo, 414 F.3d 124, 129 (1st Cir. 2005).

See CeperoMere

supervisory authority over alleged perpetrators is insufficient
to impose liability under 42 U.S.C. § 1983.
C.

See id.

Issuance of Summonses

Recognizing that Snyder may prefer to serve the original
complaint rather than filing an amended complaint, the Court
orders that summonses issue as to the defendants in the original
complaint.

However, screening the complaint pursuant to 28
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U.S.C. §§ 1915(e)(2) and 1915A, a summons shall not issue as to
SMCC.

Jails and prisons are only buildings; they are not suable

entities.

See, e.g., De La Garza v. Kandiyohi County Jail, 18

Fed. Appx. 436 (8th Cir. 2001) (per curiam); Johnson v. Johnson,
2008 WL 2421722, at *3 (E.D. Tenn. June 12, 2008); Prentice v.
Jones, 2007 WL 1141595, at *2 (N.D. Ind. Apr. 16, 2007); Larry v.
Goetz, 2006 WL 1495784, at *3 (W.D. Wis. May 18, 2006); Mardsen
v. Federal Bureau of Prisons, 856 F. Supp. 832, 836 (S.D.N.Y.
1994).
D.

Other Motions
1.

Motion for Appointment of Counsel (#2)

Although the Court “may request an attorney to represent any
person unable to afford counsel,” 28 U.S.C. §1915(e)(1), a civil
plaintiff lacks a constitutional right to free counsel, see
DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991).

The Court

does not have the funds to pay attorneys to represent plaintiffs
in civil cases, and it is very difficult for the Court to find
attorneys who will accept appointment as pro bono counsel.

To

qualify for this scarce resource, a party must be indigent and
exceptional circumstances must exist such that the denial of
counsel will result in fundamental unfairness impinging on the
party’s due process rights.

See DesRosiers, 949 F.2d at 23.

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
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represent himself.

See id. at 24.

Because the defendants have

not been served with or responded to the complaint, the Court
cannot determine whether exceptional circumstances exist that
would justify appointment of counsel.
therefore DENIED WITHOUT PREJUDICE.

The motion for counsel is
The plaintiff may renew the

motion once the defendants have been served with and have
responded to the original or amended complaint.
2.

Motion to Serve by United States Mail (#18)

Plaintiff asks to be able to serve the defendants by first
class mail.

The motion is DENIED as the Federal Rules of Civil

Procedure do not allow for service by first class mail.

However,

because the Court is allowing the plaintiff’s motion for leave to
proceed in forma pauperis, the Court will order that the United
States Marshals Service complete service, with all costs of
service to be advanced by the United States.
3.

Motion to Add Dominic Shears as a Plaintiff (#19)

Snyder seeks to add Dominic A Shears as a plaintiff in this
action.

The plaintiff alleges that the defendants’ alleged

misconduct against her have “directly effect[ed] Mr. Shears and
his right to remain free from cruel and unusaul [sic] punishment”
during his confinement in another institution.

Snyder also

states that she has “power of attorney” and “can make litigation
decisions.”

The plaintiff attached a power of attorney that

appears to be signed by Shear in which Shears gives Snyder
authority to pursue claims and litigation on his behalf.
The motion is DENIED.

Even if Shears has signed a power of
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attorney giving Snyder authority to litigate on his behalf, a
non-attorney cannot litigate on behalf of another person.

See 28

U.S.C. § 1654; Herrera-Venegas v. Sanchez-Rivera, 681 F.2d 41, 42
(1st Cir. 1982); LR 83.5.3(c), D. Mass.

Shears may be a

plaintiff if addition of him as a party would be in accordance
with the rules on joinder of claims and parties, but even then,
he would have to sign the amended complaint and would have to
sign all papers submitted under his name.
ORDER
Accordingly:
1.

The motion for appointment of counsel (#2) is DENIED

WITHOUT PREJUDICE.
2.

The motion (#3) for leave to proceed in forma pauperis

is GRANTED.

Pursuant to 28 U.S.C. § 1915(b)(1), the Court

assesses an initial partial filing fee of $53.85.

The rest of

the filing fee, $296.15, shall be paid in accordance with 28
U.S.C. § 1915(b)(2).

The Clerk shall send a copy of this order

to the treasurer of the institution having custody of the
plaintiff.
3.

South Middlesex Correctional Center shall be dismissed

as a defendant.
4.

Summonses shall issue as to the defendants in the

original complaint, with the exception of South Middlesex
Correctional Center.

The United States Marshals Service shall

serve a copy of the summonses, complaint, and this order upon the
defendants as directed by plaintiff with all costs of service to
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be advanced by the United States.
5.

The plaintiff shall have 120 days from the date of this

order to serve the original complaint.

However, the plaintiff if

not required to serve the original complaint within 120 days from
the date of this order if she files an amended complaint within
42 days of the date of this order.

The amended complaint shall

be subject to an initial screening.

See 28 U.S.C. §§ 1915(e)(2),

1915A.
6.

The motion to serve by mail (#18) is DENIED.

7.

The motions to add defendants and facts (##19, 20, 27,

32) are DENIED WITHOUT PREJUDICE.

Parties, factual allegations,

and claims may be added by filing an amended complaint in
accordance with the Court’s order above.

The plaintiff may not

litigate claims on behalf of Shears.
8.

The motion to preserve evidence (#36) is DENIED.

SO ORDERED.
/s/ William G. Young
WILLIAM G. YOUNG
UNITED STATES DISTRICT JUDGE

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