Goodman v. Tidwell et al

Filing 12

Judge George A. OToole, Jr: MEMORANDUM AND ORDER entered denying 11 Motion for appointment of counsel and temporary restraining order. The Treasurers Office at FMC Devens shall provide to the Court and to Goodman, within 21 days of the date of t his Memorandum and Order, copies of Goodmans certified prison account statement reflecting the average monthly balance and average monthly deposits for the six-month period preceding January 11, 2017. The Clerk shall issue summons as to the identifi ed defendants only. The Clerk shall send the summonses, a copy of the Complaint, and this Memorandum and Order to the plaintiff, who must thereafter serve the defendants in accordance with Federal Rule of Civil Procedure 4(m). The plaintiff may elect to have service made by the United States Marshals Service. Plaintiff shall have 90 days from the date of this Memorandum and Order to complete service. (PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
TONY GOODMAN
Plaintiff,
v.

CIVIL ACTION NO. 17-40004-GAO

COUNSELOR TIDWELL, et al.,
Defendants.
MEMORANDUM AND ORDER
April 13, 2017
O’TOOLE, D.J.
For the reasons stated below, the Court (1) allows plaintiff’s renewed motion for leave to
proceed in forma pauperis; (2) defers assessment of the filing fee until the plaintiff’s prison
account statement is filed; (3) denies plaintiff’s renewed motions for appointment of counsel and
temporary restraining order; and (4) directs the Clerk to issue summons as to the identified
defendants only.
I.

Background
On January 11, 2017, pro se plaintiff Tony Goodman, a self-described wheelchair-bound

inmate now confined to FMC Devens, filed a complaint accompanied by motions for leave to
proceed in forma pauperis, appointment of counsel, and temporary restraining order.

The

complaint is brought against more than a dozen defendants seeking equitable and monetary relief
for alleged violations of the Civil Rights Act, 42 U.S.C. § 19831; the Rehabilitation Act of 1973,
29 U.S.C. § 794; and the Americans with Disabilities Act, 42 U.S.C. § 12132. Plaintiff complains

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Although the complaint references 42 U.S.C. § 1983, the Court notes that Section 1983 does not authorize suits
against federal officials. Therefore, the Court will treat plaintiff's civil rights claims as if they were brought pursuant
to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), which
established a direct cause of action against federal officials for violations of the federal constitution.

of various conditions of confinement and alleges that upon arrival at FMC Devens on November
12, 2016, he was placed in a cell that was not handicapped accessible. Less than two weeks after
his arrival at Devens, he sustained injuries requiring a week of hospitalization after a failed attempt
to transfer from his wheelchair to the toilet. In his motion for a temporary restraining order,
Goodman asserts that the law library is not wheelchair accessible and that his requests for access
to legal materials and photocopy services were denied.
By Memorandum and Order dated January 19, 2017, the Court denied without prejudice
Goodman’s motions for leave to proceed in forma pauperis, appointment of counsel, and
temporary restraining order. Plaintiff was granted additional time to file a renewed motion for
leave to proceed in forma pauperis accompanied by his certified prison account statement. At that
time, the Clerk mailed a copy of the Memorandum and Order to the Treasurer’s Office at FMC
Devens, in order to facilitate any request by the plaintiff for his certified prison account statement.
The Court requested 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.
Now before the Court are Goodman’s affidavit, response to court order and renewed
motions for leave to proceed in forma pauperis, appointment of counsel, and temporary restraining
order. In his response to court order, Goodman states, among other things, that he is being denied
access to his prison account statement. See Docket No. 10.
II.

Discussion
Plaintiff’s renewed motions for appointment of counsel and temporary restraining order

are denied as he has not alleged any facts in support of these renewed motions.
Although Goodman filed a renewed motion for leave to proceed in forma pauperis, he
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failed to provide a certified prison account statement. Goodman indicates that he has not received
a response to his requests for a certified copy of his prison account statement from the Treasurer’s
Department or the Warden. The Court will allow Goodman’s renewed motion to proceed in forma
pauperis notwithstanding that his certified prison account statement was not filed as required under
28 U.S.C. § 1915. The Court will direct the Treasurer’s Office to provide to the Court, and to
Goodman, Goodman’s certified prison account statement. Upon receipt of the certified prison
account statement, an Order shall issue assessing Goodman’s filing fee obligations under the in
forma pauperis statute.
Given the nature of the claims, the Court will permit summons to issue as to the identified
defendants. Although the use of fictitious names to identify defendants is not favored, this is a
situation in which the identities of alleged defendants were not known to plaintiff prior to his filing
the complaint. See Martínez-Rivera v. Ramos, 498 F.3d 3, 8 (1st Cir. 2007). Nevertheless, if,
through discovery, Goodman discovers the true name of any or all of the “Doe” defendants, he
should act promptly to amend the complaint pursuant to Rule 15(a) of the Federal Rules of Civil
Procedure to identify the correct parties and their alleged misconduct and to dismiss any baseless
claims. Id. at 8 n. 5. Additionally, to the extent that some of Goodman’s claims may be subject
to dismissal for lack of respondeat superior liability or other defenses, if necessary, a defendant
may file an appropriate motion once he or she has been properly served.
III.

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

Plaintiff’s renewed motions for appointment of counsel and temporary restraining

order are DENED; and the renewed motion for leave to proceed in forma pauperis is ALLOWED.
2.

The Treasurer’s Office at FMC Devens shall provide to the Court and to Goodman,
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within 21 days of the date of this Memorandum and Order, copies of Goodman’s certified prison
account statement reflecting the average monthly balance and average monthly deposits for the
six-month period preceding January 11, 2017. The Clerk shall send a copy of this Memorandum
and Order to the Treasurer’s Office at FMC Devens.
3.

The Clerk shall issue summons as to the identified defendants only. The Clerk shall

send the summonses, a copy of the Complaint, and this Memorandum and Order to the plaintiff,
who must thereafter serve the defendants in accordance with Federal Rule of Civil Procedure 4(m).
The 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 summonses, Complaint,
and this Memorandum and Order upon the defendants, in the manner directed by the plaintiff, with
all costs of service to be advanced by the United States Marshals Service. Notwithstanding this
Order to the United States Marshals Service, it remains plaintiff’s responsibility to provide the
United States Marshals Service with all necessary paperwork and service information.
4.

Notwithstanding Fed. R. Civ. P. 4(m) and Local Rule 4.1, the plaintiff shall have

90 days from the date of this Memorandum and Order to complete service.
So Ordered.

/s/ George A. O’Toole
UNITED STATES DISTRICT JUDGE

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