Carter v. Spencer et al

Filing 13

Judge Nathaniel M. Gorton: ORDER entered denying 3 Motion for Service by Certified Mail; denying 9 Motion for Leave to Proceed in forma pauperis; denying without prejudice 10 Motion to Appoint Counsel. If Carter wishes to prosecute this action, he must, within thirty-five days, pay the $400 filing fee. Failure to do so will result in dismissal of the action. (PSSA, 3)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

)
)
)
)
)
)
)
)
)
)
)

ANTWAN CARTER,
Plaintiff,
v.
LUIS SPENCER, et al.,
Defendants.

Civil Action No.
16-12052-NMG

ORDER
GORTON, J.
Antwan Carter (“Carter”), who is incarcerated at the SouzaBaranowski Correctional Center, has filed a civil rights action
in which he alleges that his rights under federal and state law
were violated when he was assaulted by two correction officers
and threatened by a third correctional officer in October 2013.
Carter has also filed motions for leave to proceed in forma
pauperis, permission to complete service by certified mail, and
the appointment of counsel.
Upon review of the motions, the Court rules as follows:
1.

The renewed motion for leave to proceed in forma

pauperis (Docket No. 9) is DENIED because Carter has adequate
funds to prepay the filing fee.

According to Carter’s prison account statement (Docket No.
11), the average balance of his institutional account between
April 18, 2016, and October 21, 2016, was $3,600.55.
Expenditures and income for the same time period were $2,425.14
and $249.19, respectively.
was $2,658.89.

As of October 21, 2016, the balance

Based on this financial record, the Court

concludes that Carter is presently able to prepay the $400
filing fee (which includes a $50 administrative fee).
Even if the Court were inclined to allow Carter to proceed
without prepayment of the fee, the statutory initial partial
filing fee would exceed the fee amount.

Under 28 U.S.C.

§ 1915(b)(1), when the Court allows a prisoner plaintiff to
proceed without prepayment of the filing fee, the Court must
assess an initial partial filing fee in the amount of twenty
percent of the greater of the prisoner’s average monthly income
or monthly institutional account balance over the preceding six
months. 1

Using this formula, Carter’s initial filing fee would

be $720.11 (twenty percent of $3,600.55), far in excess of the
filing fee.

“Since the ‘initial partial filing fee’ calculated

pursuant to 28 U.S.C. § 1915 is not partial, but instead exceeds
the amount of the full filing fee due[,] the court does not
1

A prisoner plaintiff who is allowed to proceed in forma
pauperis is not exempt from paying the filing fee. He may
prosecute his claim without prepayment of the fee, but he must
still pay the filing fee (minus the $50 administrative fee) over
time. See 28 U.S.C. § 1915(b).

2

assess an initial fee.

Instead, the court denies plaintiff’s

Motion for Leave to Proceed in forma pauperis.”

Landry v.

Davis, C.A. No. 08-03244, 2009 WL 274242, at *1 (D. Kan. Jan.
26, 2009).
If Carter wishes to prosecute this action, he must, within
thirty-five days, pay the $400 filing fee.

Failure to do so

will result in dismissal of the action.
2.

The motion for service by certified mail (Docket No.

3) is DENIED.
Service of the complaint and summonses must comply with
Rule 4 of the Federal Rules of Civil Procedure (“Rule 4”), which
only explicitly provides for service by certified mail upon the
United States and its agencies, corporations, officers, or
employees.

See Fed. R. Civ. P. 4(i)(1), (2).

In regards to

service of individuals, unless they are incompetent or located
in a foreign country, see Fed. R. Civ. P. 4(f), (g), the
plaintiff must serve the individual under Rule 4(e) or obtain a
waiver of service under Rule 4(d).

Under Rule 4(e), service

upon an individual may be effected by:
(A) delivering a copy of the summons and of the
complaint to the individual personally; (B) leaving
copies thereof at the individual’s dwelling house or
usual place of abode with some person of suitable age
and discretion then residing therein; or (C)
delivering a copy of the summons and of the complaint
to an agent authorized by appointment or by law to
receive service of process.

3

Fed. R. Civ. P. 4(e)(2).

Rule 4(e) also allows for service in

the manner allowed under state law.
4(e)(1).

See Fed. R. Civ. P.

Under Massachusetts law, an individual located within

the state is served:
by delivering a copy of the summons and of the
complaint to him personally; or by leaving copies
thereof at his last and usual place of abode; or by
delivering a copy of the summons and of the complaint
to an agent authorized by appointment or by statute to
receive service of process.
Mass. R. Civ. P. 4(d)(1).

Because neither Rule 4 nor its state

counterpart provides for service upon individuals by certified
or registered mail, the Court denies the motion to complete
service by certified mail.

Nothing in this order precludes

Carter from asking the defendants to waive service of the
summons.
3.

See Fed. R. Civ. P. 4(d).
The motion for the appointment of counsel (Docket No.

10) is DENIED WITHOUT PREJUDICE.
Under 28 U.S.C. § 1915(e)(1), the Court “may request an
attorney to represent any person unable to afford counsel.”
U.S.C. §1915(e)(1).

28

However, a civil plaintiff lacks a

constitutional right to free counsel.
949 F.2d 15, 23 (1st Cir. 1991).

See DesRosiers v. Moran,

To qualify for appointment of

counsel, 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

4

rights.

See id.

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 represent himself.

See id. at 24.

Here, because the filing fee has not been resolved and the
defendants have not responded to or even been served with the
complaint, the Court cannot yet determine whether this case
presents exceptional circumstances that would justify the
appointment of pro bono counsel.

The motion is therefore denied

without prejudice to renewal after the defendants have responded
to the complaint.

So ordered.

/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge
Dated November 22, 2016

5