Stephen Jones v. Massachusetts Partnership for Correctional Health.

Filing 8

Chief Judge Patti B. Saris: MEMORANDUM AND ORDER entered denying without prejudice 2 Emergency Motion ; denying 4 CFB's Motion for Leave to Proceed in forma pauperis and provides CFB additional time for counsel to enter an appearance; granti ng 7 Jones' Motion for Leave to Proceed in forma pauperis and deferring the assessment of the filing fee. Within 42 days of the date of this Order, Jones shall submit his certified prison account statement. Jones will be the sole plaintiff u nless LeBaron either pays the filing fee or moves to proceed in forma pauperis with a claim asserting an imminent danger of serious bodily injury. The clerk shall issue summons as to the 4 identified defendants only. The Clerk shall send a copy of this Memorandum and Order, requesting a Status Report, to legal counsel for the Massachusetts Department of Correction and Superintendent Medeiros. (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
March 20, 2017
SARIS, C.D.J.
For the reasons set forth below, the Court (1) grants
Jones’ Motion to Proceed In Forma Pauperis and defers the
assessment of the filing fee until the Court receives a copy of
Jones’ certified prison account statement; (2) denies CFB’s
Motion to Proceed In Forma Pauperis and provides CFB additional
time for counsel to enter an appearance; (3) finds that Jones
will be the sole plaintiff unless LeBaron either pays the filing
fee or moves to proceed in forma pauperis with a claim asserting
an imminent danger of serious physical injury; (4) denies
without prejudice the Emergency Motion for TRO to Enforce All
Doctors’ Orders and RLUIPA Religious Exercise; (5) directs the
Clerk to issue summons as to the identified defendants only; and
(6) requests a Status Report from legal counsel for the
Massachusetts Department of Correction and Superintendent
Medeiros.

BACKGROUND
Plaintiffs Nathan Marquis LeBaron (“LeBaron”) and Stephen
Jones (“Jones”), prisoners at MCI Norfolk, bring this civil
rights action against various prison medical and administrative
staff, and others, pursuant to 42 U.S.C. § 1983 (civil action
for deprivation of rights), 42 U.S.C. § 2000cc-1(a) (Religious
Land Use and Institutionalized Persons Act), and 42 U.S.C. §
12131 (Americans With Disabilities Act).

Also named as

plaintiff is the non-profit corporation Church of the Firstborn
Kahal Hab’Cor (“CFB”).

Plaintiffs seek monetary damages as well

as declaratory and injunctive relief.
According to the complaint, the inmates at MCI Norfolk are
denied adequate drinking water.

The complaint alleges, among

other things, that inspections by the Massachusetts Department
of Environmental Protection (“DEP”) found repeat health and
safety violations at MCI Norfolk in 2015.

The complaint alleges

that the water is often black or brown, indicating high levels
of lead, cooper and other contaminants.

At such times, inmates

are sometimes instructed not to drink the water or shower, and
bottled water is provided only to prison employees and to the
dogs who are being trained for the National Education for
Assistance Dog Services (“NEADS”).
Additionally, the complaint alleges that Jones arrived at
MCI Norfolk on October 14, 2016, shortly after receiving a
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transplanted liver.

Although Jones takes medication to prevent

rejection of the recently transplanted organ, plaintiffs ask the
Court to order the defendants to provide Jones with (1) the
medications Eucarin and Gabepentin, (2) distilled drinking water
and (3) a bottom bunk pass.

Plaintiffs contend that the water

treatment methods cause adverse effects on the prison population
and presents a greater risk to Jones, who cannot afford to
purchase bottled water and whose request for distilled water was
denied.
Finally, the complaint alleges that Jones and LeBaron are
members of the Church of the Firstborn Kahal Hab'Cor (the "CFB")
and that the contaminated water conflicts with their access to a
“Holy Diet” as prescribed by the CFB.
With the complaint, plaintiffs’ filed a one-page “Emergency
Motion for TRO to Enforce ALL Doctors’ Orders and RLUIPA
Religious Exercise” and supporting Memorandum of Law.

Also

filed was CFB’s one-page motion to proceed in forma pauperis.
On March 7, 2017, Stephen Jones filed a motion to proceed in
forma pauperis.
DISCUSSION
I.

The Claims by Plaintiff CFB are Subject to
Dismissal because a Corporation Cannot Proceed Pro Se
As an initial matter, the Court notes that corporations are

unable to appear pro se, and the Court will not recognize the

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appearance of a firm or corporation unless it is accompanied by
the appearance of at least one attorney. District of
Massachusetts Local Rule 83.5.5(c) (providing that “[a]
corporation, partnership, limited liability company, trust,
estate, or other entity that is not an individual may not appear
pro se.”); Rowland v. California Men's Colony, Unit II Men’s
Advisory Council, 506 U.S. 194, 199–206 (1993) (recognizing the
majority rule that prohibits corporations, partnerships and
associations from appearing in federal court “otherwise than
through a licensed attorney,” and linking the right to proceed
in forma pauperis to this limitation, concluding that an
association of prison inmates did not qualify as a “person”
under 28 U.S.C. § 1915, 42 U.S.C. § 1983); Instituto de
Educacion Universal Corp. v. United States Dep’t of Educ., 209
F.3d 18 (1st Cir. 2000) (distinguishing rule that corporation
must be represented by counsel by holding that corporate officer
may sign notice of appeal, so long as counsel is retained
promptly to prosecute the appeal); Volumetric Imaging, Inc. v.
Teledyne, Inc., 194 F.R.D. 373, 375 (D. Mass. 2000) 
(“Corporations, despite their pervasive role in our modem
society, are not human beings. Although we are prone to regard
them as living entities, they are only creatures of the state
subject to government regulation and control. One of the timehallowed restrictions on corporations has been that, in court
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proceedings, they must be represented by a licensed attorney.
There is nothing unfair, illegal or unconstitutional in this
requirement.”).
The prohibition against corporations appearing pro se
equally applies to non-profit corporations.1

United We Stand

Am., Inc. v. United We Stand, Am. N. Y., 128 F.3d 86, 88 (2d
Cir. 1997) (reasoning that default was entered against a nonprofit organization when its counsel withdrew and the
organization failed to substitute new counsel as per the court's
order).

Even if the non-profit corporation is composed of

members who are currently imprisoned and it benefits prisoners,
an attorney must still represent the corporation.

Taylor v.

Knapp, 871 F.2d 803, 806 (9th Cir. 1989) (acknowledging that a
limited exception exists for a closely held corporation with one
sole shareholder).
Here, Nathan Marguis LeBaron seeks to bring suit on behalf
of CFB.

However, LeBaron may act pro se only on his own behalf,

and he may not represent the interests of CFB because he is not
alleged to be a duly-licensed attorney.

See 28 U.S.C. § 1654

(appearance personally or by counsel); District of Massachusetts
Local Rule 83.5.5(a) (providing that “[a]n individual who is not

1

Plaintiffs allege that CFB is a non-profit corporation: “CFB is a
corporation filed under G.L. c. 180 [Corporations for Charitable and Certain
Other Purposes] and CFB’s corporation Sole is a nonprofit entity distinct
from the President of CFB to which duties adhere under ecclesiastical law.”
Complaint, ¶ 4.

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represented by counsel and who is a party in a pending
proceeding may appear pro se and represent himself or herself in
the proceeding.”).
Therefore, CFB’s Motion to Proceed In Forma Pauperis is
DENIED.

If CFB intends to proceed in this action, CFB must

retain counsel.
II.

Plaintiff Jones’ Motion to Proceed In Forma Pauperis
After review of Jones' financial disclosures in his Motion

to Proceed In Forma Pauperis, the court will ALLOW the motion
notwithstanding that Jones failed to submit a certified prison
account statement as required under 28 U.S.C. § 1915(a)(2).
Where, as here, the plaintiff is a prisoner, a request to
proceed without 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
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).

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.

Because Jones is a

prisoner, he is obligated to make payments toward the $350.00
filing fee pursuant to 28 U.S.C. § 1915(b), but this court

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cannot assess the fee without the certified prison account
statement.
Accordingly, it is ordered that Jones shall, within 42 days
of the date of this Memorandum and Order, submit a certified
prison account statement for the six-month period preceding the
filing of the complaint.

A copy of this Memorandum and Order

shall be sent to the Treasurer's Office at MCI Norfolk with the
request that it provide Jones with a certified prison account
statement reflecting the average monthly balance and average
monthly deposits for the six-month period preceding February 21,
2017.
Upon receipt of the certified 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 $350.00 filing fee is
paid in full.

See 28 U.S.C. § 1915(b)(1)-(2).

Even if the

action is dismissed, the plaintiff remains obligated to pay the
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).

Failure by Jones to comply with this

directive to submit a certified prison account statement may
result in a dismissal of this action.
The Clerk will be directed to issue summons as to the
identified defendants only.

Although the use of fictitious
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names to identify defendants is not favored, situations may
arise where the identity of an alleged defendant cannot be known
prior to the filing of a complaint.

See Martínez-Rivera v.

Ramos, 498 F.3d 3, 8 (1st Cir. 2007).

If, through discovery,

Jones discovers the true name of any or all of the “Doe”
defendants, he “should act promptly to amend the complaint to
substitute the correct parties and to dismiss any baseless
claims.”

Id. at 8 n. 5.

III. LeBaron Received “Three Strikes” Under 28 U.S.C. § 1915(g)
The Court’s records indicate that LeBaron, on three or more
prior occasions, had non-habeas civil actions dismissed as
frivolous or failing to state a claim.

See Lebaron v. Meal

Mart, et al., C.A. No. 12-11134-PBS (D. Mass. Jun. 28, 2012)
(collecting cases).

As already noted, Nathan Marguis LeBaron

seeks to bring suit on behalf of CFB.

To the extent LeBaron

intends to pursue an individual claim, his ability to proceed in
forma pauperis is limited to claims asserting an imminent danger
of serious physical injury, pursuant to 28 U.S.C. § 1915(g).
Accordingly, unless LeBaron either pays the applicable
filing fee or moves to proceed in forma pauperis with a claim
asserting an imminent danger of serious physical injury, Jones
will be the sole plaintiff in this action.

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IV.

Plaintiff’s Motion for Temporary Restraining Order
Plaintiffs Emergency Motion for TRO shall be denied without

prejudice at this time.

A temporary restraining order (“TRO”)

is an order issued without notice to the party to be enjoined
that may last no more than 14 days.

Fed R. Civ. P. 65(b)(2).

A

TRO may issue without notice only if "specific facts in an
affidavit or a verified complaint clearly show that immediate
and irreparable injury, loss, or damage will result to the
movant before the adverse party can be heard in opposition."
Fed. R. Civ. P. 65(b)(1)(A).

Even where a plaintiff makes a

showing of "immediate and irreparable" injury, the Court cannot
issue a TRO without notice to the adverse parties unless the
plaintiff "certifies in writing any efforts made to give notice
and the reasons why it should not be required."
65(b)(1)(B).

Fed. R. Civ. P.

Such injunctive relief is warranted “to prevent a

substantial risk of serious injury from ripening into actual
harm.”

Farmer v. Brennan, 511 U.S. 825, 845 (1994).

In ruling on a motion for a preliminary injunction or
temporary restraining order, the Court must consider: "(1) the
movant's likelihood of success on the merits; (2) whether and to
what extent the movant would suffer irreparable harm if the
request were rejected; (3) the balance of hardships between the
parties; and (4) any effects that the injunction or its denial

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would have on the public interest." Diaz-Carrasquillo v. GarciaPadilla, 750 F.3d 7, 10 (1st Cir. 2014).
The emergency motion seeks to have distilled water provided
to Jones, due to his medical condition, and all CFB members,
based on their religious observance.

The emergency motion also

seeks the provision to Jones of a bottom bunk pass and the
medications Eucerin and Gabapentin for the severe nerve damage
to Jones’ feet.

Based on the allegations in the complaint and

emergency motion, it would not be appropriate to enter an order
for this form of relief at this time.

Although the complaint

describes the beliefs of CFB members as well as

Jones’ medical

condition, which the court takes very seriously, the court does
not deem it appropriate order such remedies without first
considering the response of the defendants (several of whom are
medical providers).

Accordingly, the TRO is denied without

prejudice to plaintiff Jones renewing this request, should it
become necessary to do so.
V.

Order for Defendants to File a Status Report
Notwithstanding the denial of the emergency motion for TRO,

the Court is concerned by the seriousness of the allegations
with respect to the alleged denial to Jones of medically
prescribed medications (Eucerin and Gabapentin), adequate
drinking water and a bottom bunk pass.

Accordingly, it is

hereby Ordered that the Clerk shall send a copy of this
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Memorandum and Order to legal counsel for the Massachusetts
Department of Correction, as well as MCI Norfolk Superintendent
Sean Medeiros, with a request that counsel provide this court
with a Status Report, preferably within twenty-one (21) days of
this Memorandum and Order, regarding Jones’ medications, bunk
assignment and access to distilled drinking water.
ORDER
Based upon the foregoing, it is hereby Ordered that:
1.
DENIED.

Plaintiff CFB's Motion to Proceed In Forma Pauperis is
If CFB intends to proceed in this action, CFB must

retain counsel.

Unless counsel enters an appearance within 21

days of the date of this Memorandum and Order, CFB will be
dismissed as a party to this action;
2.

If LeBaron wishes to proceed as a plaintiff in this

action, within 21 days of the date of this Memorandum and Order,
he either must pay the applicable filing fee or move to proceed
in forma pauperis with a claim asserting an imminent danger of
serious physical injury;
3.

Plaintiff Jones' Motion to Proceed In Forma Pauperis

is ALLOWED and the assessment of the filing fee pursuant to §
1915(b)(1)-(2) is DEFERRED;
4.

Within 42 days of the date of this Memorandum and

Order, plaintiff Jones shall submit his certified prison account
statement under 28 U.S.C. § 1915, failing which this action may
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be dismissed. The Clerk shall send a copy of this Memorandum and
Order to the Treasurer's Office at MCI Norfolk in order to
facilitate any request by Jones for his certified prison account
statement.

The Court requests that the Treasurer's Office

include in any prison account statement Jones' average monthly
deposits for the six-month period preceding February 21, 2017,
as well as the average monthly balance for that same period;
5.

Plaintiffs’ Emergency Motion for TRO to Enforce All

Doctors’ Orders and FLUIPA Religious Exercise is DENIED without
prejudice;
6.

The Clerk shall issue summonses as to the identified

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

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;
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8.

Service must be within 90 days of the date the

summonses issue and must be made in accordance with Rule 4 of
the Federal Rules of Civil Procedure and Local Rule 4.1;
9.

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;
10.

The Clerk shall send a copy of this Memorandum and

Order to legal counsel for the Massachusetts Department of
Correction and Superintendent Medeiros with the request for a
Status Report noted; and
11.

Plaintiffs’ failure to comply with the directives of

this Order may result in dismissal of that party’s claims from
this action.

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

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