Opinion
CIVIL ACTION NO. 19-11232-RGS
06-14-2019
TIMOTHY EDDINGTON v. BUREAU OF PRISONS, et al.
MEMORANDUM AND ORDER
For the reasons set forth below, the court (1) grants plaintiff twenty-eight days to either pay the $400 filing fee or file an Application to Proceed in District Court Without Prepaying Fees or Costs accompanied by a certified copy of his prison account statement; and (2) denies without prejudice plaintiff's motion to appoint counsel.
BACKGROUND
On June 3, 2019, Timothy Eddington, a prisoner now incarcerated at FMC Devens, filed a complaint seeking a declaratory judgment, injunctive relief, and monetary damages pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). See Docket No. 1, Complaint ("Compl."). With the complaint, Eddington filed a Memorandum of Law in Support of Plaintiff's Motion for Preliminary Injunction, TRO and Suit and a Motion to Appoint Counsel. See Docket Nos. 2, 3.
FILING FEE
A party bringing a civil action must either (1) pay the $350.00 filing fee and the $50.00 administrative fee, 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).
Here, Eddington has not paid the filing fee and has not sought leave to proceed in forma pauperis. See Docket. He acknowledges in the complaint that he is a "three strikes" litigant pursuant to 28 U.S.C. § 1915(g). Compl. ¶ 15, p. 8; see also Eddington v. Grondolsky, No. 16-11711-DJC, 2016 WL 6584904 (D. Mass. 2016) (collecting cases).
A prisoner may not bring an in forma pauperis civil action if the prisoner has, on three or more prior occasions, brought an action that was dismissed because it was frivolous, malicious, or failed to state a claim, unless he or she is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). --------
If Eddington wishes to proceed with this action, he will be granted additional time to either (1) pay the $400.00 filing and administrative fees; or (2) file an application to proceed in forma pauperis accompanied by a certified prison account statement. Because he is a three-strikes litigant, Eddington may only proceed in forma pauperis if he is under imminent danger of serious physical injury.
PLAINTIFF'S REQUESTS FOR INJUNCTIVE RELIEF
The Court will not construe plaintiff's requests as a preliminary injunction, because preliminary injunctions may not be issued without notice to the adverse party, and no motion has been filed by plaintiff. See Fed. R. Civ. P. 65(a) (1). To the extent plaintiff seeks a temporary restraining order, there is no certification in writing of any effort plaintiff has made to provide at least informal notice and no details as to the reasons why such notice should not be required in view of an immediate and irreparable need for injunctive relief. See Fed. R. Civ. P. 65(b).
PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL
Under 28 U.S.C. § 1915(e)(1), the court "may request an attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(e)(1). However, a civil plaintiff lacks a constitutional right to free counsel. See DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991). In order to qualify for appointment of counsel, a party must be indigent and exceptional circumstances must exist such that the denial of counsel will result in fundamental unfairness impinging on the party's due process rights. See id.
Here, plaintiff's motion will be denied because the filing fee issue has not been determined and, at this early stage of litigation, the court cannot yet determine whether this case presents exceptional circumstances that would justify the appointment of pro bono counsel.
ORDER
Accordingly, the court hereby orders:
1. If plaintiff wishes to proceed with this action, within 28 days of this Memorandum and Order, plaintiff shall either (1) pay the $400.00 filing and administrative fees; or (2) file an application to proceed in forma pauperis accompanied by a certified prison account statement. Failure of the plaintiff to comply with this directive may result in the dismissal of this action.
2. Plaintiff's Motion to Appoint Counsel is denied without prejudice.
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE