Lugo v. United States of America

Filing 9

Judge George A. OToole, Jr: ORDER entered. MEMORANDUM AND ORDER(PSSA, 5)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
LUKE LUGO,

)
)
)
)
)
)
)

Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

Civil No. 17-10770-GAO

MEMORANDUM AND ORDER
July 19, 2017
O’TOOLE, D.J.
For the reasons set forth below, the Court (1) denies without prejudice plaintiff’s motions
for temporary restraining order and preliminary injunction; (2) denies without prejudice
plaintiff’s motion for video recording; and (3) grants plaintiff thirty-five days to file an amended
complaint and either pay the filing fee or file an Application to Proceed in District Court Without
Prepaying Fees or Costs.
I.

BACKGROUND
On April 25, 2017, plaintiff Luke Lugo (“Lugo”), a prisoner in custody at the Middlesex

County House of Correction, filed several handwritten documents. See Docket. The Clerk of
this Court filed these documents as a complaint and a motion for temporary restraining order.
See Docket Nos. 1, 2.
On May 11, 2017, Lugo filed a complaint (Docket No. 5), motion for preliminary
injunction (Docket No. 7), and motion for video “recordings” (Docket No. 6). Each document is
one page. Lugo has printed his name and identification number at the top of each of these
documents. None of the documents has a case caption, and they are not signed or dated by Lugo.
Lugo has not identified any defendants, and it is not clear what legal claims he seeks to assert.

The fees for filing a civil action are the $350.00 filing fee and the $50.00 administrative
fee. See 28 U.S.C. § 1914(a) ($350.00 filing fee for all non-habeas civil actions). An indigent
litigant may request 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 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). 1
Here, Lugo failed to pay the filing fee or to seek a waiver thereof. Therefore, he will be
granted additional time either to (1) pay the $400.00 filing and administrative fees; or (2) file an
application to proceed in forma pauperis accompanied by a certified prison account statement.
In addition to addressing the fee issue, Lugo is granted additional time to file a complaint
that conforms with the pleading requirements of the Federal Rules of Civil Procedure. Any
complaint must identify the defendants and the specific relief sought. See Fed. R. Civ. P 8(a). In
addition to complying with Rule 8(a), a complaint should also comply with Fed. R. Civ. P.
8(d)(1)(“Each allegation must be simple, concise, and direct.”). Further, under the Federal Rules
of Civil Procedure, a complaint “must name all the parties,” Fed. R. Civ. P. 10(a), and the claims
should be set forth “in numbered paragraphs, each limited as far as practicable to a single set of

1

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

circumstances,” Fed. R. Civ. P. 10(b). The plaintiff must sign a complaint. See Fed. R. Civ. P.
11(a).
In order to facilitate the filing of an complaint, the court suggests, but does not require,
Lugo to use the national federal court form complaint for violation of civil rights (prisoner) (Pro
Se 14).
Acciordingly,
1.

Plaintiff’s Motions for Temporary Restraining Order and for Preliminary

Injunction are DENIED without prejudice.
2.

If plaintiff wishes to pursue this action, he shall, within thirty-five (35) days of the

date of this Memorandum and Order, file a complaint that conforms with the pleading
requirements of the Federal Rules of Civil Procedure. The Clerk shall provide plaintiff with the
national federal court form complaint for violation of civil rights (prisoner).
3.

Within 35 days of this Memorandum and Order, plaintiff either shall (1) pay the

$400.00 filing and administrative fees; or (2) file an application to proceed in forma pauperis
accompanied by a certified prison account statement. Failure of the plaintiff to comply with this
directive may result in the dismissal of this action. The Clerk shall provide plaintiff with an
Application to Proceed in District Court Without Prepaying Fees or Costs.
4.

The Clerk shall send a copy of this Memorandum and Order to the Treasurer’s

Office at the prison facility in which plaintiff is incarcerated, in order to facilitate any request by
the plaintiff 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 April 25, 2017, as well as the average monthly balance for that same
period.

3

5.

Failure of the plaintiff to comply with these directives may result in the dismissal

of this action.
SO ORDERED.
___/s/ George A. O’Toole, Jr.
GEORGE A. O”TOOLE, JR.
United States District Judge

4