Kendall v. Murray et al

Filing 6

Chief Judge Patti B. Saris: ORDER entered. MEMORANDUM AND ORDER. The Court will treat Kendalls letter (Docket No. 1) and Affidavit (Docket No. 3-1) as a complaint and request for preliminary relief. The Court will treat Kendalls proposed order to show cause and exhibits (Docket Nos. 2-1, 2-2) as a motion for preliminary injunction. Plaintiff is provisionally granted leave to proceed in forma pauperis because of his medical condition. He must, within forty-two days of the date of this order, file an Application to Proceed in District Court without Prepaying Fees or Costs accompanied by a copy of his prison trust account statement. Failure to do so may result in dismissal of the action. The Clerk shall send a copy of this Memorandum an d Order to plaintiff with a blank Application to Proceed in District Court without Prepaying Fees or Costs. The Clerk shall issue summons and the United States Marshals Service shall complete service with all costs to be advanced by the United States . The Clerk shall send copies of plaintiffs complaint and motion to legal counsel for FMC Devens, the Warden for FMC Devens and the Office of the United States Attorney for the District of Massachusetts. The defendants shall have seven business days to respond to the motion.(PSSA, 3)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
STEVEN N. KENDALL,
Plaintiff,

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v.
DOCTOR MURRAY, et al.,
Defendants.

Civ. Action No. 18-10141-PBS

MEMORANDUM AND ORDER
January 26, 2018
SARIS, C.D.J.
On January 24, 2018, Steven Kendall (“Kendall”), who is
confined at FMC Devens and proceeding pro se, filed a letter
(Docket No. 1), a proposed Order to Show Cause with Exhibits
(Docket No. 2) and a document captioned as a “Memorandum of Law
in Support of Plaintiff’s Motion for Preliminary Injunction” and
Affidavit (Docket No 3).
Kendall asserts that he is in imminent danger because,
among other things, his “K-pouch” is damaged and causes a
condition of “leaking and bleeding bowel,” his prosthetic is
damaged and causes excruciating pain when trying to walk, he is
denied use of a handicapped accessible cell, and he is being
denied required surgery.

Kendall has begun the grievance

process and contends that he will suffer permanent injury if he
has to wait to complete the grievance process.
The Court will treat Kendall’s letter (Docket No. 1) and
Affidavit (Docket No. 3-1) as a complaint and request for

preliminary relief.

The Court will treat Kendall’s proposed

order to show cause and exhibits (Docket Nos. 2-1, 2-2) as a
motion for preliminary injunction pursuant to Rule 65 of the
Federal Rules of Civil Procedure.
Because Kendall has not paid the filing fee nor filed a
motion to proceed in forma pauperis, he will be provisionally
granted leave to proceed in forma pauperis because of his
medical condition, and he will be granted additional time to
file such motion accompanied by a copy of his prison trust
account statement. 1

The Clerk will be directed to issue summons

for service and the defendants shall have seven business days to
respond to the request for injunctive relief.
ORDER
Based on the foregoing, it is hereby Ordered that:
1. The Court will treat Kendall’s letter (Docket No. 1) and
Affidavit (Docket No. 3-1) as a complaint and request for
preliminary relief. The Court will treat Kendall’s
proposed order to show cause and exhibits (Docket Nos. 2-1,
2-2) as a motion for preliminary injunction.
1

Unlike other civil litigants, prisoner plaintiffs are not
entitled to a complete waiver of the filing fee, notwithstanding
the granting 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 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 id. §§ 1915(e)(2),
1915A, 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).
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2. Plaintiff is provisionally granted leave to proceed in
forma pauperis because of his medical condition. He must,
within forty-two days of the date of this order, file an
Application to Proceed in District Court without Prepaying
Fees or Costs accompanied by a copy of his prison trust
account statement. Failure to do so may result in
dismissal of the action. The Clerk shall send a copy of
this Memorandum and Order to plaintiff with a blank
Application to Proceed in District Court without Prepaying
Fees or Costs.
3. The Clerk shall issue summons and the United States
Marshals Service shall complete service with all costs to
be advanced by the United States.
4. The Clerk shall send copies of plaintiff’s complaint and
motion to legal counsel for FMC Devens, the Warden for FMC
Devens and the Office of the United States Attorney for the
District of Massachusetts. The defendants shall have seven
business days to respond to the motion.
SO ORDERED.
/s/ Patti B. Saris
PATTI B. SARIS
CHIEF UNITED STATES DISTRICT JUDGE

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