Luna v. Campbell et al

Filing 6

Judge Indira Talwani: MEMORANDUM AND ORDER entered granting 2 Motion for Leave to Proceed in forma pauperis but the assessment of the filing fee pursuant to 28 U.S.C.§ 1915(b) is DEFERRED; denying without prejudice 3 Motion to Appoint Coun sel. Plaintiff shall, within 28 days of the date of this order, file with the Court (A) an Application bearing his original signature, and (B) a certified copy of his prison account statement for the six-month period preceding the filing of the comp laint. The Clerk shall issue summonses and the United States Marshal 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 cler k mailed copies this Order to plaintiff Luna as well as to the Treasurer's Office at USP McCreary in order to facilitate any request by Luna for his certified prison account statement. Failure by Luna to comply with the directive to submit a signed Application and a certified prison account statement may result in a dismissal of this action without prejudice. (PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

PASCUAL LUNA,
Plaintiff,
v.
MATTHEW CAMPBELL, ET AL.,
Defendants.

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Civil Action No.
15-11477-IT

ORDER
TALWANI, D.J.
On March 30, 2015, plaintiff Pascual Luna (“Luna”), a prisoner at USP McCreary in
Kentucky, filed a pro se complaint against his defense attorney, a police officer, a prosecutor and
three chemists alleging violation of 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act,
M.G. L. c. 12, § 11, stemming from Luna’s 2006 arrest on drug-related charges. With the
complaint, Luna filed an unsigned Application to Proceed Without Prepayment of Fees and a
prison account statement dated December 8, 2014.
A party bringing a civil action must either (1) pay the $350.00 filing fee and the $50.00
administrative fee1, 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). Where, as here, the plaintiff is a
prisoner, a motion for waiver of prepayment of the filing fee must be accompanied by “a certified
copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month
1

The $50.00 administrative fee became effective May 1, 2013; it does not apply to persons
proceeding in forma pauperis. See Judicial Conference Fee Schedule.
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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).2

Rule 11(a) of the Federal Rules of Civil Procedure requires that "[e]very pleading,
written motion, and other paper must be signed … by a party personally if the party is
unrepresented.” Fed. R. Civ. P. Rule 11(a); see also District of Massachusetts Local Rule 5.1
(a)(1) ("The provisions of the Federal Rules of Civil Procedure pertaining to the form and
signing of pleadings, motions, and other papers shall be applicable to all papers filed in any
proceeding in this court."). Rule 11(a) directs that an unsigned paper must be stricken unless the
omission of the signature is promptly corrected after being called to the attention of the party.
Fed. R. Civ. P. Rule 11(a). The Advisory Committee’s notes accompanying Rule 11 state that if
an unsigned paper is submitted, “[c]orrection can be made by signing the paper on file or by
submitting a duplicate that contains the signature.” Fed. R. Civ. P. 11, Advisory Committee
Note to 1993 Amendments.
Although Luna submitted an Application to Proceed Without Prepayment of Fees
(“Application”), he failed to sign it. Additionally, Luna’s prison account statement fails to
include financial information concerning the 3-month period immediately preceding the filing of
this action.
2

Unlike other civil litigants, prisoner plaintiffs are not entitled to a complete waiver of the 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 filing 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

In light of Luna’s pro se status, the Court will provide him with an opportunity to correct
these deficiencies. After reviewing Luna’s financial disclosures, the Court will grant the
Application notwithstanding the fact that it has not been signed. Luna will be granted additional
time to file a signed Application. Luna is obligated to make payments toward the filing fee
pursuant to 28 U.S.C. § 1915(b), but this Court cannot assess the fee without the appropriate
certified prison account statement.
In light of the foregoing, it is hereby ORDERED that
1.

The Application (Docket No. 2) to Proceed Without Prepayment of Fees and
Affidavit is GRANTED but the assessment of the filing fee pursuant to 28 U.S.C.
§ 1915(b) is DEFERRED;

2.

Plaintiff shall, within 28 days of the date of this order, file with the Court (A) an
Application bearing his original signature, and (B) a certified copy of his prison
account statement for the six-month period preceding the filing of the complaint;

3.

The Clerk shall mail copies of this order to Luna and shall also send a copy of this
Order to the Treasurer's Office at USP McCreary in order to facilitate any request
by Luna for his certified prison account statement. The Court requests that the
Treasurer's Office include in any prison account statement the plaintiff's average
monthly deposits for the six-month period preceding the date the complaint was
filed (March 30, 2015), as well as the average monthly balance for that same
period. Failure by Luna to comply with the directive to submit a signed
Application and a certified prison account statement may result in a dismissal of
this action without prejudice;

4.

The Clerk shall issue summonses and the United States Marshal 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;

5.

Each defendant, if served with a summons, is required to respond to the
complaint. See 42 U.S.C. §1997e(g)(2); and

6.

Plaintiff’s Motion (Docket No. 3) for Appointment of Counsel is denied without
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prejudice to renewing after the defendants file responsive pleadings to the
complaint.
So ordered.
/s/ Indira Talwani
Indira Talwani
United States District Judge
Dated: June 15, 2015

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