Feijoo v. Spencer et al

Filing 16

Judge Indira Talwani: Memorandum and Order. Plaintiffs Application to Proceed in District Court Without Prepaying Fees or Costs 11 is granted for the purpose of having the marshal service plaintiffs complaint on the defendants. Plaintiffs Motion R equesting Fees and Costs of Service 10 is granted. The Clerk shall issue summonses and the United States Marshals Service shall serve a copy of the summonses, complaint, and this Memorandum and Order upon the defendants as directed by plaintiff wi th all costs of service to be advanced by the United States. 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. The defendants are required to re spond to the complaint. See 42 U.S.C. § 1997e(g)(2). Plaintiffs motions for reconsideration of appointment of counsel 9 14 are denied without prejudice to renewal after the defendants have filed a responsive pleading and upon good cause shown. (PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
HUMBERTO FEIJOO,
Plaintiff,
v.

CIVIL ACTION NO.
14-12833-IT

LUIS SPENCER, et al.,
Defendants.
MEMORANDUM AND ORDER
For the reasons stated below, Plaintiff’s Application to
Proceed in District Court Without Prepaying Fees or Costs is
granted for the purpose of service of process; Plaintiff’s Motion
Requesting Fees and Costs of Service is granted; and Plaintiff’s
motions for reconsideration of appointment of counsel are denied
without prejudice.
BACKGROUND
Humberto Feijoo, a prisoner confined to MCI - Shirley,
initiated this civil rights action by filing a complaint, motion
for counsel and payment of the $350 filing fee.

Because

plaintiff did not pay the $50 administrative fee, he was granted
additional time either to pay the $50.00 administrative fee or
move for leave to proceed without prepayment of the filing fee
along with the submission of a certified copy of his prison
account statement.

See 07/21/14 Procedural Order, Docket No. 6.

Plaintiff’s motion for appointment of counsel was denied without
prejudice to renewal after the filing fee issue has been
resolved.

Id.

Feijoo paid the $50 administrative fee.

See Docket No. 8.

Now pending before the Court are his (1) Application to Proceed
in District Court Without Prepaying Fees or Costs; (2) Motion
Requesting Fees and Costs of Service by Sheriff; and (3) two
Motions for Reconsideration of Plaintiff’s Motion for Appointment
of Counsel.

On October 14, 2014, plaintiff filed a letter

explaining that he paid the filing and administrative fees and is
waiting to hear from the Court concerning his requests for waiver
of the sheriff’s fee and appointment of counsel.

See Docket No.

15.
DISCUSSION
In this case, Plaintiff paid the filing fee and now seeks in
forma pauperis (“IFP”) status for appointment of counsel and
service of the complaint by the United States Marshals Service.
Pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3),
the Court is required to “order service by the U.S. Marshal if
the plaintiff is authorized to proceed IFP.”
Wall, 551 F.3d 92, 93 (1st Cir. 2008).

See Laurence v.

Under 28 U.S.C. §

1915(e)(1), the Court may request an attorney to represent any
person unable to afford counsel.
Plaintiff declares under the penalty of perjury that he is
not employed in prison and that his only source of income is
gifts of money from family and friends.

See Docket No. 11.

Plaintiff’s IFP will be granted and the United States Marshals
Service will be appointed to effect service of process of the

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summons and complaint.1
As to plaintiff’s renewed request for appointment of
counsel, Feijoo has established that he is financially eligible.
However, such appointment is a privilege and not a right.

See

DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991) (“there is
no absolute constitutional right to a free lawyer in a civil
case”).

In order to qualify for appointment of counsel, a party

must be indigent and exceptional circumstances must exist such
that denial of counsel will result in fundamental unfairness
impinging on the party's due process rights.

Id.

At this early stage in the litigation, and without the
benefit of a response from the defendants to the complaint, the
Court cannot find that exceptional circumstances exist warranting
the appointment of counsel at this time.
Accordingly, it is hereby ORDERED that:
(1)

Plaintiff’s Application to Proceed in District Court
Without Prepaying Fees or Costs (Docket No. 11) is
granted for the purpose of having the marshal service
plaintiff’s complaint on the defendants;

(2)

Plaintiff’s Motion Requesting Fees and Costs of Service
(Docket No. 10) is granted;

(3)

The Clerk shall issue summonses and the United States
Marshals Service shall serve a copy of the summonses,

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The Court notes that Plaintiff’s IFP was not accompanied by
a copy of his prison account statement. The IFP will be granted
despite the failure of filing such a statement because plaintiff
paid the filing fee and his prison account statement is not needed
for assessment of an initial, partial filing fee. See 28 U.S.C. §
1915(b)(1).
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complaint, and this Memorandum and Order upon the
defendants as directed by plaintiff with all costs of
service to be advanced by the United States.
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;
(4)

The defendants are required to respond to the
complaint. See 42 U.S.C. § 1997e(g)(2); and

(5)

Plaintiff’s motions for reconsideration of appointment
of counsel (Docket Nos. 9, 14) are denied without
prejudice to renewal after the defendants have filed a
responsive pleading and upon good cause shown.

SO ORDERED.
November 14, 2014
DATE

/s/ Indira Talwani
INDIRA TALWANI
UNITED STATES DISTRICT JUDGE

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