Stephen Jones v. Massachusetts Partnership for Correctional Health.

Filing 20

Chief Judge Patti B. Saris: MEMORANDUM AND ORDER entered granting 19 Motion to Reopen Case. Pursuant to 28 U.S.C. § 1915(b)(1), the Court assesses an initial partial filing fee of $30.00. The remainder of the fee, $320.00, shall b e collected in accordance with 28 U.S.C. § 1915(b)(2);The Clerk shall reissue summonses as to Massachusetts Partnership for Correctional Health (MPCH), the Massachusetts Department of Correction, Stephanie Byron, and Linda M. Farag. The time to effect services of the summonses and complaint upon the defendants is enlarged to a date 90 days from the date of this Memorandum and Order. Because Jones is proceeding in forma pauperis, he may elect to have the United States Marshals Service (USMS) complete service with all costs of service to be advanced by theUnited States. Pursuant to 42 U.S.C. § 1997e(g)(2), the defendants shall respond to the complaint as provided for in the Federal Rules of Civil Procedure. (PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

NATHAN MARQUIS LEBARON, et al.,
Plaintiffs,
v.
MASSACHUSETTS PARTNERSHIP FOR
CORRECTIONAL HEALTH, et al.,
Defendants.

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Civ. Action No. 17-10323-PBS

MEMORANDUM AND ORDER
August 31, 2017
SARIS, C.D.J.
Plaintiff Stephen Jones, proceeding pro se, has filed a
Motion for Court to Reinstate Plaintiff’s Complaint, which the
Court has construed as a motion under Rule 60(b) for relief from
this Court’s order of June 14, 2017 dismissing this action for
failure to prosecute under Federal Rule of Civil Procedure Rule
41(b).

For reasons that follow, the case will be reopened.
BACKGROUND

Stephen Jones, an inmate in custody at MCI Norfolk,
initiated this civil rights action with another inmate [Nathan
LeBaron] and a non-profit corporation [Church of the Firstborn
Kahal Hab’Cor] against various prison medical and administrative
staff, and others, alleging the denial of adequate drinking

water.

See Docket No. 1.

It is alleged that consumption of

contaminated water conflicts with plaintiffs’ access to a
religious diet as prescribed by their Church and that the water
treatment methods present a health risk to Jones, who received a
transplanted liver.

Id.

Lebaron’s motion to proceed in forma pauperis was denied
pursuant to 28 U.S.C. § 1915(g) and the Church was granted
additional time for counsel to enter an appearance.
No. 8.

See Docket

Notwithstanding the fact that he did not file a copy of

his prison account statement, Jones’ motion to proceed in forma
pauperis was granted and the Court deferred the assessment of
the filing fee until the Court received a copy of Jones’
certified prison account statement. Id.

At that time,

plaintiffs’ emergency motion was denied and the Court requested
a Status Report regarding Jones’ medications, bunk assignment
and access to distilled drinking water.

Id.

Summons were issued for service of the four defendants
identified in the complaint.

See Docket No. 9.

Jones was

advised that that he may elect to have the United States
Marshals Service complete service on his behalf.

See Docket

Nos. 8, 9-1.
A timely status report was filed by DOC counsel, who
entered a limited appearance.

See Docket Nos. 13, 14.

The

Court denied Jones’ subsequent motion for reconsideration of the
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denial of the emergency motion.

See Docket No. 16.

At that

time, Jones was directed to submit a copy of his prison account
statement.

Id.

On May 5, 2017, the Clerk terminated Nathan LeBaron and CFB
as parties to this action.

See Docket No. 16.

Jones was

granted until May 31, 2017, to submit a certified copy of his
prison account statement, see 28 U.S.C. §§ 1915(b)(1)-(2), for
assessment and collection of filing fee payments when funds
exist.

Id.

In the affidavit accompanying the motion to reopen, Jones
avers, among other things, that he became “very sick” during the
months of February and March and, on April 2, 2017, was
transported by ambulance to Norwood Hospital.
19-1.

See Docket No.

A week later, Jones was transferred to UMass Medical

Center for surgery on his right lung.

Id.

Before returning to

MCI Norfolk on May 18, 2017, he remained hospitalized at various
placements including the Lemuel Shattuck Hospital and the prison
infirmary at the Souza Baranowski Correctional Center.

Id.

After bring brought to UMass Medical Center on July 5, 2017,
Jones was “cleared.”

Id.

At that time, he received his legal

mail, including the Court’s May 5, 2017 Order and the April 10,
2017 Status Report.

Id.

Jones notes that the April 10, 2017

Status Report, see Docket No. 13-11, includes a copy of his
prison account statement.

See Docket No. 19.
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DISCUSSION
I.

Motion for Court to Reinstate Plaintiff’s Complaint
The Court must liberally construe the motion because Jones

is not represented by an attorney.

See Haines v. Kerner, 404

U.S. 519, 520–21 (1972); Rodi v. Ventetuolo, 941 F.2d 22, 23
(1st Cir. 1991); see also Strahan v. Coxe, 127 F.3d 155, 158 n.
1 (1st Cir. 1997) (noting obligation to construe pro se
pleadings liberally) (citing Haines v. Kerner, 404 U.S. at
520)).
While the Federal Rules of Civil Procedure do not expressly
allow for motions to reinstate, a litigant subject to an adverse
judgment, and who seeks reconsideration by the district court of
that adverse judgment, may file a motion under either Rule 59(e)
(motion to alter or amend judgment) or Rule 60(b) (relief from
judgment).

A motion to alter or amend the judgment must be

filed within twenty-eight days after the judgment is entered.
See Fed. R. Civ. P. 59(e).

Rule 60(b) of the Federal Rules of

Civil Procedure authorizes a court to grant a party relief from
a prior final judgment for certain enumerated reasons.1

Rule

1The

rule provides for relief on the following grounds: “mistake,
inadvertence, surprise or excusable neglect,” Fed. R. Civ. P. 60(b)(1);
“newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b),” Fed. R.
Civ. P. 60(b)(2); “fraud (whether previously intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party,” Fed. R. Civ. P.
60(b)(3); “the judgment is void,” Fed. R. Civ. P. 60(b)(4); “the judgment has
been satisfied, released or discharged; it is based on an earlier judgment
that has been reversed or vacated; or applying it prospectively is no longer

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60(c)(1) provides a one year limitation period “for reasons (1),
(2) and (3) [of Rule 60(b) ]” and there is no time limitation
for a motion brought under Rule 60(b)(6).

Cotto v. United

States, 993 F.2d 274, 278 (1st Cir. 1993).
Jones’ motion was signed on July 20, 2017 and filed with
the Court on July 26, 2017.

Even if the court construed the

filing under the prison mailbox rule of Houston v. Lack, 487
U.S. 266, 276 (1988), the earliest the Court would find the
motion filed is July 20, 2017, which is more than a week after
the 28 day time limit under Rule 59(e).

Twenty-eight days after

final judgment entered on June 14, 2017, would be July 12, 2017.
Therefore, Jones’ motion will be construed as a motion to
reconsider filed pursuant to Rule 60(b).
A motion for reconsideration will be allowed only if (1)
the movant presents newly discovered evidence, (2) shows there
has been an intervening change in the law or (3) demonstrates
that the initial “decision was based on a manifest error of law
or was clearly unjust.”

Cruz v. Talmadge, No. 15-13258-NMG, --

F. Supp. 3d --, 2017 WL 1128443, at *4 (D. Mass. Mar. 23, 2017)
(citing Noel v. Walt Disney Parks & Resorts U.S., Inc., No. 1040071-FDS, 2011 WL 6258334, at *1 (D. Mass. 2011)).

equitable,” Fed. R. Civ. P. 60(b)(5); or “any other reason that justifies
relief,” Fed. R. Civ. P. 60(b)(6).

5 

The Court concludes that Jones should be relieved from the
order dismissing his case for failure to prosecute based on his
severe illness at the pertinent time.

The Court finds that

Jones’ failure to attend to this lawsuit in such circumstances
is excusable.

In the absence of significant prejudice to the

defendants, the balance of interests tips in favoring of
reopening.
II.

Prison Litigation Reform Act Filing Fee
Jones was previously permitted to proceed in forma pauperis

and assessment of the filing fee pursuant to the Prison
Litigation Reform Act was deferred.

Upon review of Jones’

prison account statement, see Docket No. 13-11, Jones is
assessed an initial partial filing fee of $30.00, pursuant to 28
U.S.C. § 1915(b)(1)(B), with the remainder of the fee [$320.00]
to be assessed and collected in accordance with 28 U.S.C. §
1915(b)(2).

The Clerk shall notify the Treasurer’s Office at

MCI Norfolk to facilitate payment.
III. Enlargement of Time for Service of Process
In light of the reinstatement of this case, the Court will
enlarge Jones’ time to effect service of the summonses and
complaint upon the four defendants identified in the complaint
to a date 90 days from the date of this Memorandum and Order.
See Fed. R. Civ. P. 4(m) (court, on its motion, may enlarge the
time to effect service).

The Court directs: (1) the Clerk to
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reissue summons for Massachusetts Partnership for Correctional
Health (MPCH), the Massachusetts Department of Correction,
Stephanie Byron, and Linda M. Farag; and (2) the United States
Marshal to serve the summonses and complaint as directed by
Jones with all costs of service to be paid by the United States.
Jones remains the sole plaintiff in this action.

In order

to avoid confusion, the case titled assigned at the opening of
this case shall be amended to reflect the earlier dismissal of
plaintiffs Nathan LeBaron and the Church of the Firstborn Kahal
Hab’Cor.

The case caption shall be changed to reflect Stephen

Jones as the sole plaintiff.
ORDER
Based upon the foregoing, it is hereby Ordered that:
1.

The motion for relief under Rule 60(b) is hereby

granted;
2.

The Clerk is directed to reopen and reinstate the case

on the Court’s docket with Stephen Jones as the sole plaintiff;
3.

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

an initial partial filing fee of $30.00.

The remainder of the

fee, $320.00, shall be collected in accordance with 28 U.S.C. §
1915(b)(2);
4.

The Clerk shall reissue summonses as to Massachusetts

Partnership for Correctional Health (MPCH), the Massachusetts
Department of Correction, Stephanie Byron, and Linda M. Farag.
7 

The time to effect services of the summonses and complaint upon
the defendants is enlarged to a date 90 days from the date of
this Memorandum and Order.
5.

Because Jones is proceeding in forma pauperis, he may

elect to have the United States Marshals Service (“USMS”)
complete service with all costs of service to be advanced by the
United States.

If so asked by Jones, the USMS shall serve a

copy of the summonses, complaint and this Memorandum and Order
upon the defendants as directed by plaintiff. The plaintiff is
responsible for providing the USMS all copies for service and
for completing a USM-285 form for each party to be served.

The

Clerk shall provide the plaintiff with forms and instructions
for service by the USMS; and
6.

Pursuant to 42 U.S.C. § 1997e(g)(2), the defendants

shall respond to the complaint as provided for in the Federal
Rules of Civil Procedure.

SO ORDERED.
/s/ Patti B. Saris
PATTI B. SARIS
CHIEF UNITED STATES DISTRICT JUDGE

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