De Armas v. Elsmore et al

Filing 6

Judge Patti B. Saris: ORDER entered granting #4 Motion for Leave to Proceed in forma pauperis; denying #2 Motion for TRO; denying #3 Motion to Appoint Counsel. All claims for damages against the defendants in their official capacity are dismissed. The Clerk shall issue summonses for both defendants and De Armas shall serve the summonses, complaint, and this order upon the defendants in accordance with Rule 4 of the Federal Rules of Civil Procedure. Because De Armas is proceeding in forma pauperis, he may elect to have the United States Marshals Service complete service with all costs of service to be advanced by the United States. Service must be completed within 90 days the summonses issue. (PSSA, 3)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
RAFAEL DE ARMAS
Plaintiff,
v.

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JOSEPH L. ELSMORE, et al.,
Defendants.

C.A. No. 21-11069-PBS

ORDER
Saris, D.J.

July 14, 2021

Rafael De Armas, who is incarcerated at MCI Norfolk, has
filed a complaint in which he alleges that MCI Norfolk
Superintendent Nelson Alves and MCI Correction Officer Joseph
Elsmore used excessive force against him and made a false
disciplinary against him.

According to De Armas, because of the

false report, he has spent the past four months in segregation
in the prison’s disciplinary unit.
De Armas has also filed motions for leave to proceed in
forma pauperis, for the appointment of counsel, and for a
temporary restraining order that he be removed from disciplinary
segregation.
Upon review of De Armas’s filings, the Court hererby
orders:

1.
GRANTED.

The motion for leave to proceed in forma pauperis is
Because De Armas has been without any funds for six

months, no filing fee is assessed.

The entire $350 filing fee

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 of
the institution having custody of De Armas.
2.
DENIED.

The motion for a temporary restraining order is
A temporary restraining order may only issue without

notice to the adverse party only when “specific facts in an
affidavit or verified complaint clearly show that immediate and
irreparable injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition.”
R. Civ. P. 65(b)(1).

See Fed.

No such showing is made in this case.

The

denial of a motion for a temporary restraining order does not
preclude De Armas from filing a motion for a preliminary
injunction.
3.

The motion for appointment of counsel is DENIED

without prejudice to renewal after the defendants have been
served with and responded to the complaint.
4.

All claims for damages against the defendants in their

official capacity are dismissed.

See Arizonans for Official

English v. Arizona, 520 U.S. 43, 69 n.24 (1997) (“State officers
in their official capacities, like States themselves, are not
amenable to suit for damages under § 1983. . . . State officers
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are subject to § 1983 liability for damages in their personal
capacities, however, even when the conduct in question relates
to their official duties.” (citation omitted)).
5.

The Clerk shall issue summonses for both defendants

and De Armas shall serve the summonses, complaint, and this
order upon the defendants in accordance with Rule 4 of the
Federal Rules of Civil Procedure.
6.

Because De Armas is proceeding in forma pauperis, he

may elect to have the United States Marshals Service (“USMS”)
complete service with all costs of service to be advanced by the
United States.

If asked by De Armas, the USMS shall serve the

summonses, complaint, and this order upon the defendants as
directed by the plaintiff.

De Armas is required to provide the

USMS all copies for service and complete a USM-285 form for each
party to be served.

The Clerk shall provide De Armas with forms

and instructions for service by the USMS.
7.

De Armas must ensure that service is completed within

90 days of the date the summonses issue.

Failure to comply with

this deadline may result in dismissal of the action without
further notice from the Court.21SO ORDERED.
/s/ Patti B. Saris
PATTI B. SARIS
UNITED STATES DISTRICT JUDGE

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