Raymou v. Bank of America Corp.
Magistrate Judge M. Page Kelley: ORDER entered denying without prejudice 5 Motion to Appoint Counsel; denying without prejudice 2 Motion for Leave to Proceed in forma pauperis. Filing fee or renewed motion for leave to proceed in forma pauperi s. If the plaintiff wishes to prosecute this action, she must, within twenty-one days, either (a) pay the $400 filing fee; or (b) file a renewed motion for leave to proceed in forma pauperis using the Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) (AO Form 239). [Copy of Order and AO Form 239 mailed to plaintiff on 8/4/2017.] (PSSA, 3)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
RUBY B. RAYMOU,
CIVIL ACTION NO. 17-10894-MPK
BANK OF AMERICA CORP.,
ORDER ON PLAINTIFF’S MOTIONS FOR LEAVE TO PROCEED IN FORMA PAUPERIS
AND FOR THE APPOINTMENT OF COUNSEL
Plaintiff Ruby B. Raymou, who is proceeding pro se, brings this lawsuit in which she
alleges that her former employer discriminated against her on the basis of her religion. A
summons has not issued pending resolution of the filing fee.1 Raymou has filed motions for
leave to proceed in forma pauperis and for the appointment of counsel, both of which the Court
denies without prejudice for the reasons stated below.
Motion for Leave to Proceed in Forma Pauperis.
Under 28 U.S.C. § 1915, a person seeking to proceed in forma pauperis must submit an
affidavit that includes “a statement of all assets such [person] possesses that the person is unable
to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). Raymou filed this statement
(#2), using a form application provided by the Court. She indicates that her income is limited to
unemployment compensation and that her assets are $1,300 in cash and an automobile worth less
than $500. In the portions of the application in which the litigant is directed to report housing,
transportation, utilities, loan payments, or other regular monthly expenses, Raymou wrote “NA.”
Further, if the Court allows the plaintiff to proceed in forma pauperis, the Court will
conduct a preliminary screening of the complaint before a summons issues. See 28 U.S.C.
She gave same response for the question requiring the applicant to report any debt or other
financial obligations. In her subsequently-filed motion for counsel (#5), she reports that she has
$30,000 in credit card debt.
Raymou’s application does not provide the Court with an adequate understanding of her
financial situation. She represents that she does not have any debts or financial obligations, yet
in her motion for counsel she reports significant credit card debt. Further, Raymou indicates
that she also does not have any monthly expenses. While the Court may speculate that she is
receiving support from a family member or friend because she cannot provide for herself, the
Court cannot grant the motion based on conjecture. Moreover, to the extent that she has access
to the assets of her spouse, it is proper for the Court to consider the financial position of both
persons in considering whether the plaintiff should be allowed to proceed in forma pauperis.
See, e.g., Fridman v. City of New York, 195 F. Supp. 2d 534, 537 (S.D.N.Y. 2002) (“In assessing
an application to proceed in forma pauperis, a court may consider the resources that the applicant
has or ‘can get’ from those who ordinarily provide the applicant with the ‘necessities of life,’
such as ‘from a spouse, parent, adult sibling or other next friend.’” (quoting Williams v. Spencer,
455 F. Supp. 205, 208–09 (D. Md. 1978))); cf. Lee v. McDonald’s Corp., 231 F.3d 456, 459 (8th
Cir. 2000) (where litigant’s spouse denied him access to her assets, decision whether to grant
indigent status must be based on litigant’s financial status alone).
For these reasons, the Court will deny without prejudice the motion for leave to proceed
in forma pauperis. If Raymou wishes to file a renewed motion for leave to proceed in forma
pauperis, she must submit a completed longer form application which asks for the financial
information of both the litigant and the litigant’s spouse. The Court will provide this form to the
Motion for Appointment of Counsel
Although the Court “may request an attorney to represent any person unable to afford
counsel,” 28 U.S.C. §1915(e)(1), a civil plaintiff lacks a constitutional right to free counsel, see
DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991). The Court does not have the funds to pay
attorneys to represent plaintiffs in civil cases, and it can be challenging for the Court to find
attorneys who will accept appointment as pro bono counsel. To qualify for this scarce resource,
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 rights. See id. at 23.
Because of the above-discussed ambiguities in Raymou’s representations concerning her
financial status, the Court cannot, at this time, determine whether she is financially eligible for
the appointment of pro bono counsel. Further, because a summons has not issued and the
defendant has not responded to the complaint, the Court cannot yet ascertain whether exceptional
circumstances warranting the appointment of counsel exist.
The motion for leave to proceed in forma pauperis (#2) is DENIED WITHOUT
PREJUDICE. If the plaintiff wishes to prosecute this action, she must, within twenty-one days,
either (a) pay the $400 filing fee; or (b) file a renewed motion for leave to proceed in forma
pauperis using the Application to Proceed in District Court Without Prepaying Fees or Costs
(Long Form) (AO Form 239), and any other document or written information she deems to be
relevant. The Clerk shall provide AO Form 239 to the plaintiff.2 Failure to comply with this
directive may result in dismissal of the action.
The motion for appointment of counsel (#5) is DENIED WITHOUT
PREJUDICE. The plaintiff may renew the motion after the defendant has been served with and
responded to the complaint.
August 4, 2017
/s/ M. Page Kelly
M. Page Kelley
United States Magistrate Judge
This form is also available in PDF fillable format at
http://www.uscourts.gov/forms/fee-waiver-application-forms/application-proceed-district-courtwithout-prepaying-fees-or (last visited August 3, 2017).
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