Perez v. Spencer et al

Filing 11

Judge Douglas P. Woodlock: ORDER entered denying without prejudice 4 Motion for Discovery; denying 9 Motion for Leave to Proceed in forma pauperis. If Perez wishes to pursue this action, he must, within 35 days of the date of this order, pay th e $400.00 filing and administrative fees. Failure to comply with this order will result in dismissal of this action without prejudice for failure to pay the filing fee. No summonses shall issue pending resolution of the filing fee and screening of the complaint. (PSSA, 3)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
LUIS PEREZ,
Plaintiff,
v.
LUIS SPENCER, et al.,
Defendants.

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C.A. No. 14-10054-DPW

ORDER
February 17, 2014
Luis Perez, who is incarcerated at the North Central
Correctional Institution at Gardner (“NCCI”), brings this pro se
action in which he alleges that he was unlawfully subject to
prison discipline for writing letter to an attorney who had
wrongly obtained a judgment against him.

He also claims that,

under the pretext of the disciplinary conviction, he was
transferred to another prison in retaliation for making public
statements about prison conditions.

Finally, he alleges that,

during the transfer, his rights were violated because the
restraints applied to him and the length of the transport
exacerbated a serious medical condition.
Perez seeks leave to proceed in forma pauperis.

The prison

account statement accompanying his motion indicates that the
average daily balance over the six-month period preceding the
filing of the motion was $1,909.71.
received $1,151.03.

In the same period, he

His current account balance is $1,943.46.

In light of the funds available to Perez, I conclude that
the plaintiff has sufficient funds to prepay the $400.00 filing

and administrative fees.

If Perez would like to proceed with

this action, he must prepay the $400.00 fee.1
Once Perez pays the fee, but prior to the issuance of any
summonses, the complaint will be subject to an initial screening
pursuant to 28 U.S.C. § 1915A.

This statute authorizes district

courts to dismiss sua sponte prisoner actions brought against
governmental entities or officers if the compliant is frivolous,
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is immune
from such relief.

I will also consider whether I have subject

matter jurisdiction over this action.2
Accordingly:
(1)
is DENIED.

The motion for leave to proceed in forma pauperis (#9)
If Perez wishes to pursue this action, he must,

within thirty-five (35) days of the date of this order, pay the
1

I also note that, even if I granted the motion, Perez would
still be required to pay the $350.00 filing fee over time. See
28 U.S.C. § 1915(b)(1), (2). For a prisoner bringing non-habeas
actions, the benefit of in forma pauperis status, in regards to
the filing fee, is that the plaintiff can commence the action
without having to prepay the $350.00 filing fee and the $50.00
administrative fee is waived. The $350.00 filing fee is not
waived for indigent prisoners in non-habeas civil actions and
ultimately the prisoner will have to pay it, for example from
such funds as prison authorities identify.
2

In particular I note that under the Rooker-Feldman
doctrine, a federal district court does not have subject matter
jurisdiction to entertain an action brought by a party who lost
in state court and who is “seeking review and rejection of that
judgment’ in federal court.” Exxon Mobile, 544 U.S. at 291; see
also D.C. Ct. of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker
v. Fidelity Trust Co., 263 U.S. 413 (1923). This case will be
screened in light of the judgment entered in connection with
Perez v. Commissioner of Correction, 995 N.E. 2d 843 (Mass. App.
Ct. 2013).
2

$400.00 filing and administrative fees.

Failure to comply with

this order will result in dismissal of this action without
prejudice for failure to pay the filing fee.
(2)
PREJUDICE.

The motion for discovery (#4) is DENIED WITHOUT
Should this action proceed to discovery, the

plaintiff will be able to make discovery requests in accordance
with applicable Federal Rules of Civil Procedure.
(3)

No summonses shall issue pending resolution of the

filing fee and screening of the complaint.
SO ORDERED.
/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

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