Skandha v. Ferreira et al

Filing 6

Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER(PSSA, 5)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
BODHISATTVA SKANDHA,
)
)
Plaintiff,
)
)
Civil Action No.
v.
)
17-11533-FDS
)
JAMES FERREIRA, STEPHANIE
)
COLLINS, SEAN MEDEIROS,
)
KYLE PAIVA, and THOMAS TURCO, III,
)
in their official and individual capacities,
)
)
Defendants.
)
__________________________________________)
MEMORANDUM AND ORDER
SAYLOR, J.
I.

Introduction
For the reasons set forth below, plaintiff’s motion for leave to proceed in forma pauperis

will be DENIED without prejudice, and he will be ORDERED, by October 20, 2017, to either
(1) pay the $400 filing and administrative fees or (2) file a renewed motion for leave to proceed
in forma pauperis (including a prisoner account statement) and show cause why in forma
pauperis status is not barred pursuant to 28 U.S.C. § 1915(g).
II.

Background
On August 14, 2017, Bodhisattva Skandha, who is incarcerated at MCI Norfolk, filed a

self-prepared, verified complaint alleging that defendants failed to provide him car-only
transportation, as opposed to van transportation, to court appointments. He alleges that
historically he had, at some point, a prescription for car-only transportation, and that next month
he has a parole hearing that will require transportation. He also alleges that he has future

unspecified court and medical appointments. Along with his complaint, Skandha filed a motion
to proceed in forma pauperis.
III.

Discussion
Skandha’s motion will be denied without prejudice. A party bringing a civil action must

either (1) pay the $350 filing fee and the $50 administrative fee 1, see 28 U.S.C. ' 1914(a), or (2)
seek leave to proceed without prepayment of the filing fee, see 28 U.S.C. ' 1915 (proceedings in
forma pauperis). Where 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). 2 Skandha recently filed a prison account statement,
but only for the five-month period preceding the filing of the complaint. Therefore, the motion
will be denied without prejudice.
In addition, a prisoner must be denied in forma pauperis status if he has had, on three or
more prior occasions, an action or appeal dismissed on the ground that it was frivolous,
malicious, or failed to state a claim upon which relief can be granted (the so-called “three strike”
rule). 28 U.S.C. § 1915(g). If a prisoner has “three strikes,” he may only proceed in forma

1

The $50 administrative fee became effective May 1, 2013; it does not apply to persons proceeding in
forma pauperis. See Judicial Conference Fee Schedule.
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. Based on the information contained in the prison account
statement, the court may 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 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

pauperis if he is “under imminent danger of serious physical injury.” Id. Skandha is a “threestrikes” litigant. 3 He is therefore ineligible for in forma pauperis status unless, at the time of the
filing of the complaint, he was “under imminent danger of serious physical injury.” See 28
U.S.C. § 1915(g); Malik v. McGinnis, 293 F.3d 559, 562–63 (2d Cir.2002) (holding that
“imminent danger” exception only applies to danger existing at the time the complaint is filed”).
Here, Skandha makes no attempt to address his “three strikes” status or whether, at the
time of the filing of the complaint, he was in “imminent danger of serious physical injury” for
purposes of 28 U.S.C. § 1915(g) (emphasis supplied). Skandha’s verified complaint describes an
apparently disputed “avoid van” prescription renewal that was denied over a year ago. He does
not appear to allege that he has requested, nor has been denied a request, for a current
accommodation for car transportation to his upcoming parole hearing or future unspecified court
hearings and medical appointments. The fact that Skandha has been required to use the prison
van apparently more than a year ago (although this is not entirely clear from the verified
complaint), without more, is insufficient to describe imminent danger of serious physical harm to
afford relief from the “three strikes” rule.
IV.

Conclusion
Accordingly, for the foregoing reasons,
1.

Plaintiff’s motion to proceed in forma pauperis is DENIED without prejudice.

2.

Plaintiff shall, by October 20, 2017, either (1) pay the filing and administrative

3

Skandha has filed numerous cases in this Court, some of which he brought under the name of Richard
Seaver. See Seaver v. Spencer, C.A. No. 06-11150-RWZ (D. Mass.) (D. 13, filed 6/18/2010) (notice of name change).
Three of these cases have been dismissed for failure to state a claim upon which relief can be granted. See Seaver v.
Manduco, C.A. No. 00-10906-REK (D. Mass.) (D. 52, dated 1/4/2002), aff’d, App. No. 02-1149 (1st Cir.); Dzugan v.
Pomarole, C.A. No. 01-11320-RCL (D. Mass.) (D. 10, dated 6/19/2002) (multi-plaintiff prisoner action); Skandha v.
Sumner, C.A. No. 11-10679-JLT (D. Mass.) (D. 9, dated 10/5/2011), aff’d, App. No. 11-2285 (1st Cir.).

3

fee of $400 or (2) file a renewed motion to proceed in forma pauperis, along with
his prison account statement. To the extent plaintiff files a renewed motion to
proceed in forma pauperis, plaintiff shall show cause why such status is not
barred by 28 U.S.C. § 1915(g), specifically addressing whether and how, at the
time he filed his verified complaint, he was in imminent danger of serious
physical injury.
3.

For the convenience of litigants, this Court uses a form application to seek leave
to proceed in forma pauperis. The clerk is directed to provide plaintiff with the
form Application to Proceed in District Court Without Prepaying Fees or Costs.

4.

The clerk shall also send a copy of this Procedural 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 the date
the complaint was filed, as well as the average monthly balance for that same
period.

5.

Failure to comply with this Order will likely result in dismissal of this action.

So Ordered.

/s/ F. Dennis Saylor IV
F. Dennis Saylor IV
United States District Judge

Dated: September 29, 2017

4