Collymore v. Commonwealth of Massachusetts et al

Filing 11

District Judge Leo T. Sorokin: ORDER entered. MEMORANDUM AND ORDER(PSSA, 5)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
STEVEN D. COLLYMORE,
)
Plaintiff,
)
)
Civil Action No.
v.
)
18-11215-LTS
)
COMMONWEALTH OF MASSACHUSETTS, )
AND COURT OFFICER TOM DONOVAN,
)
Defendants.
)
__________________________________________)
MEMORANDUM AND ORDER
SOROKIN, D. J.
For the reasons stated below, the Court will allow the motion to proceed in forma pauperis,
assess an initial filing fee, dismiss without prejudice certain claims against the Commonwealth of
Massachusetts and official capacity claims against Tom Donovan, and issue summons as to
defendant Tom Donovan.
I.

Background
On June 11, 2018, pro se prisoner plaintiff, Steven D. Collymore filed this action against

the Commonwealth of Massachusetts and Court Officer Tom Donovan. Collymore claims that he
was verbally harassed and physically assaulted by Court Officer Tom Donovan on May 18, 2018
while being escorted to the lockup after a hearing in state court. Pending before the Court is
plaintiff’s renewed motion to proceed in forma pauperis.
II.

Discussion
A.

Plaintiff’s Renewed Motion for Leave to File In Forma Pauperis

Plaintiff’s renewed motion for leave to proceed in forma pauperis (ECF No. 7) is hereby
ALLOWED. Pursuant to 28 U.S.C. § 1915(b)(1), the Court assesses an initial partial filing fee of

$84.60.1 The remainder of the fee, $265.40, shall be collected in accordance with 28 U.S.C. §
1915(b)(2). The Clerk shall send a copy of this Order to the Treasurer’s Office at the Suffolk
County House of Correction, along with the standard Notice to Prison form.
B.

Preliminary Screening of the Complaint

Because plaintiff is a prisoner and proceeding in forma pauperis, his complaint is subject
to screening pursuant to 28 U.S.C. § 1915 and §1915A, and is construed generously. Hughes v.
Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972); Instituto de Educacion
Universal Corp. v. U.S. Dept. of Education, 209 F.3d 18, 23 (1st Cir. 2000). Plaintiff’s claims for
monetary damages against the Commonwealth of Massachusetts and the defendant Donovan in
his official capacity fail to state a claim upon which relief can be granted. “‘[A] suit by private
parties seeking to impose a liability which must be paid from public funds in the state treasury is
barred by the Eleventh Amendment’” to the United States Constitution. Davidson v. Howe, 749
F.3d 21, 27 (1st Cir. 2014)(quoting Edelman v. Jordan, 415 U.S. 651, 663 (1974). “This is true
whether the named defendant is the state itself or… a state official in her official capacity.” Id.
Moreover, the Commonwealth has not consented to suit under 42 U.S.C. §1983 in its own or the
federal courts, see Woodbridge v. Worcester State Hosp., 384 Mass. 38, 44–45 (1981), and Section
1983 does not abrogate a state's immunity from suit in federal court. Will v. Mich. Dep't of State
Police, 491 U.S. 58, 66 (1989) (“Congress, in passing § 1983, had no intention to disturb the States'
Eleventh Amendment immunity and so to alter the federal-state balance in that respect....”). Under
the statute, the Commonwealth of Massachusetts and Donovan in their official capacities are not
persons pursuant to 42 U.S.C. §1983. The Eleventh Amendment does not, however, bar actions
for damages against Donovan in his individual capacity. Accordingly, all claims for monetary

1

The calculation was made by taking the prison account history available, 3 months’ prior to the filing of
the complaint.

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damages against the Commonwealth of Massachusetts and Tom Donovan in his official capacity
are DISMISSED without prejudice pursuant to 28 U.S.C. §1915(e)(2)(B)(iii).
III.

Conclusion and Order
Based on the foregoing, it is hereby Ordered that:
1.

Plaintiff's renewed Motion for Leave to Proceed in forma pauperis (ECF No. 8) is

ALLOWED. Pursuant to 28 U.S.C. § 1915(b)(1), the Court assesses an initial partial filing fee of
$84.60. The remainder of the fee, $265.40, shall be collected in accordance with 28 U.S.C. §
1915(b)(2). The Clerk shall send a copy of this Order to the Treasurer’s Office at the Suffolk
County House of Correction, along with the standard Notice to Prison form.
2.

All claims against the Commonwealth of Massachusetts and official capacity

claims against Donovan are hereby DISMISSED without prejudice pursuant to 28 U.S.C.
§1915(e)(2)(B)(iii).
3.

The Clerk shall issue a summons for service of the complaint on defendant Tom

Donovan. The Clerk shall send the summons, complaint, and this Order to the plaintiff, who must
thereafter serve the defendant in accordance with Federal Rule of Civil Procedure 4(m). Plaintiff
may elect to have service made by the United States Marshals Service. If directed by the plaintiff
to do so, the United States Marshals Service shall serve the summons, complaint, and this Order
upon the defendant, in the manner directed by the plaintiff, with all costs of service to be advanced
by the United States. Notwithstanding this Order to the United States Marshal Service, it remains
plaintiff’s responsibility to provide the United States Marshal Service with all necessary
paperwork and service information. Notwithstanding Fed. R. Civ. P. 4(m) and Local Rule 4.1, the

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plaintiff shall have 90 days from the date of this Order to complete service.
SO ORDERED.

Dated: July 18, 2018

/s/ Leo T. Sorokin__________
UNITED STATES DISTRICT JUDGE

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