Smith v. Sheriff's Barnstable

DISTRICT OF MASSACHUSETTS

)

STEVEN SMITH, )

Plaintiff, )

) CIVIL ACTION

v. ) NO. 20-10128-WGY

)

SHERIFF BARNSTABLE JAIL, )

Defendant. )

)

YOUNG, D.J. January 29, 2020

MEMORANDUM AND ORDER

For the reasons stated below, the Court denies without prejudice

plaintiff’s motion for leave to proceed in forma pauperis, denies

plaintiff’s motion for temporary restraining order and dismisses this

action without prejudice pursuant to 28 U.S.C. § 1915A.

I. Relevant Background

On January 21, 2020, Steven Smith, a pretrial detainee in custody

at the Barnstable County Correctional Facility, filed a pro se complaint

accompanied by motions for a temporary restraining order and for leave

to proceed in forma pauperis.

Plaintiff’s two-page, handwritten complaint is brought pursuant to

42 U.S.C. § 1983 and names as sole defendant the Barnstable County

Sheriff, in his official capacity. See Complaint (“Compl.”). According

to the complaint, upon arrival as a new inmate at the jail, plaintiff

“was tagged – like a bird – with an ID Bracelet made of plastic and

fastened together by a metal button-lock type of clasp.” Id. at p. 1.

Plaintiff states that he “[fiercely] objects to this invasion of his

germs.” Id. at p. 2 (emphasis in the original). Plaintiff states that

“tagging” is akin to “owning [plaintiff] as property” and plaintiff

suggests that “ID CARDS ARE [the norm.]” Id. (emphasis in the

original). Plaintiff seeks to have this court “order the Barnstable

Sheriff to immediately stop said practice.” Id. Plaintiff does not

seek monetary damages. Id.

Plaintiff’s one-page motion for temporary restraining order seeks

an order to enjoin “the practice of TAGGING pre-trial detainees with

unmoveable (sic) ID wristbands immediately.” See Docket No. 3. The

motion seeks to proceed as a class action. Id.

II. Motion for Leave to Proceed In Forma Pauperis

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). Litigants seeking to

proceed in forma pauperis must submit an affidavit that includes a

statement of all plaintiff's assets. See 28 U.S.C. § 1915(a)(1). This

“affidavit” requirement is satisfied as long as it contains the phrase

“under penalty of perjury” and states that the document is true. See

28 U.S.C. § 1746 (unsworn declarations under penalty of perjury); see

also Rowland v. California Men's Colony, Unit II Men's Advisory Council,

506 U.S. 194, 205 (1993) (discussing function of affidavit requirement).

Where, as here, the plaintiff is a prisoner, a motion for waiver

of prepayment of the filing fee must be accompanied by “a certified

for the prisoner for the 6-month period immediately preceding the filing

of the complaint . . . obtained from the appropriate official of each

prison at which the prisoner is or was confined.” 28 U.S.C. §

1915(a)(2).

Unlike other civil litigants, prisoner plaintiffs are not entitled

to a complete waiver of the filing fee, notwithstanding the grant of in

forma pauperis status. Based on the information contained in the prison

account statement, the Court directs the appropriate prison official to

withdraw an initial partial payment from the plaintiff’s account,

followed by payments on a monthly basis until the entire $350.00 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 28 U.S.C. §§

1915(e)(2), 1915A, the plaintiff remains obligated to pay the filing

fee, see McGore v. Wrigglesworth, 114 F.3d 601, 607 (6th Cir. 1997).

Here, plaintiff drafted his own handwritten motion. See Docket

No. 2. Plaintiff failed to submit an affidavit and his motion is not

a suitable substitute because it is not signed under the penalties of

perjury and does not meet the statutory requirement. Because the

complaint is subject to summary dismissal, see infra. ¶ V (discussion),

plaintiff will not be granted additional time to file a renewed motion

for leave to proceed in forma pauperis and affidavit.

III. Motion for Temporary Restraining Order

A temporary restraining order (“TRO”) is an order issued without

notice to the party to be enjoined that may last no more than 14 days.

"specific facts in an affidavit or a 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." Fed.

R. Civ. P. 65(b)(1)(A). Even where a plaintiff makes a showing of

"immediate and irreparable" injury, the court cannot issue a TRO without

notice to the adverse parties unless the plaintiff "certifies in writing

any efforts made to give notice and the reasons why it should not be

required." Fed. R. Civ. P. 65(b)(1)(B).

Here, there is no certification in writing of any effort plaintiff

has made to provide at least informal notice to the defendant 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(a)(1).

In addition to notice to the adverse party, a motion for injunctive

relief must be accompanied by a memorandum in support addressing the

four requirements for injunctive relief: “(1) a substantial likelihood

of success on the merits, (2) a significant risk of irreparable harm if

the injunction is withheld, (3) a favorable balance of hardships, and

(4) a fit (or lack of friction) between the injunction and the public

interest.” Nieves-Marquez v. Puerto Rico, 353 F. 3d 108, 120 (1st Cir.

2003). In order to secure injunctive relief, plaintiff must establish

that he is likely to succeed on his claim. This he has not done.

Because the Court finds that plaintiff has not shown a reasonable

likelihood of success on the merits, see infra. ¶ V (discussion), the

to issue a temporary restraining order. Sindicato Puertorriqueno de

Trabajadores v. Fortuno, 699 F.3d 1, 10 (1st Cir. 2012).

IV. Preliminary Screening of the Complaint

Under 28 U.S.C. § 1915A, prisoner complaints in civil actions that

seek redress from a governmental entity or officers or employees of a

governmental entity are subject to screening. Section 1915A authorizes

federal courts to dismiss a complaint sua sponte if the claims therein

lack an arguable basis in law or in fact, fail to state a claim on which

relief may be granted, or seek monetary relief against a defendant who

is immune from such relief. See 28 U.S.C. § 1915A(b). In conducting

this review, the Court liberally construes the complaint because the

plaintiff is proceeding pro se. Haines v. Kerner, 404 U.S. 519, 520-

21 (1972).

Plaintiff brings this action challenging the conditions of his

confinement pursuant to 42 U.S.C. § 1983, which “creates a remedy for

violations of federal rights committed by persons acting under color of

state law.” Haywood v. Drown, 556 U.S. 729 (2009). “To make out a

viable section 1983 claim, a plaintiff must show both that the conduct

complained of transpired under color of state law and that a deprivation

of federally secured rights ensued.” Klunder v. Brown Univ., 778 F.3d

24, 30 (1st Cir. 2015) (quoting Santiago v. Puerto Rico, 655 F.3d 61,

68 (1st Cir. 2011)).

pretrial detainees to conditions of confinement that amount to pretrial

punishment. See Bell v. Wolfish, 441 U.S. 520, 535 (1979). As to

violations of the Eighth Amendment, “[pretrial] detainees are protected

under the Fourteenth Amendment Due Process Clause rather than the Eighth

Amendment; however, the standard to be applied is the same as that used

in Eighth Amendment cases.” Burrell v. Hampshire Cty., 307 F.3d 1, 7

(1st Cir. 2002).

The Eighth Amendment requires prison officials to maintain “humane

conditions of confinement” by ensuring that inmates receive adequate

food, clothing, shelter, and medical care, and taking “reasonable

measures to guarantee the safety of the inmates.” See Farmer v.

Brennan, 511 U.S. 825, 832 (1994). The Supreme Court has held that a

prison official violates the Eighth Amendment only when two requirements

are met. Id. at 834. First, the deprivation must be “sufficiently

serious,” such that the inmate or detainee can “show that he is

incarcerated under conditions posing a substantial risk of serious

harm.” Id. Second, the prison official must have acted with

“deliberate indifference to inmate health or safety.” Id. (internal

quotation marks omitted) (quoting Wilson v. Seiter, 501 U.S. 294, 302–

03 (1994)).

V. Discussion

Plaintiff’s complaint fails to state a plausible claim for a

violation of plaintiff’s constitutional rights. Plaintiff complains of

the alleged indignity of having to wear an identification bracelet,

which would indicate that plaintiff has a constitutional right to choose

the form of identification badge issued by the penal institution.

The assertions set forth in plaintiff’s complaint are insufficient

to support a claim for a constitutional violation under either the

Eighth or Fourteenth Amendments concerning the conditions of

plaintiff’s confinement. The complaint does not allege any specific

threat to plaintiff’s personal safety and the court cannot find that

the prison’s use of identification bracelets violates federal law.

Moreover, to the extent plaintiff seeks to represent a class, there

is no basis to certify a class under Rule 23 of the Federal Rules of

Civil Procedure, and the absence of counsel prevents the court from

certifying a class. Section 1654 of Title 28 of the United States Code

provides, in pertinent part, that “[i]n all courts of the United States

the parties may plead and conduct their own cases personally or by

counsel”) (emphasis added). Section 1654 “bar[s] a non-lawyer from

representing anyone but himself.” O'Diah v. Volkswagen of Amer., Inc.,

No. 03-1043, 91 Fed.Appx. 159, 160 (1st Cir. 2004) (per curiam). Thus,

a class must be represented by counsel because one member of the class

(including a representative party) cannot litigate the claims of another

class member. See, e.g., Anderson v. Brown, 668 Fed.Appx. 221, 222

(9th Cir. 2016) (per curiam); Johnson v. Brown, 581 Fed.Appx. 777, 781

(11th Cir. 2014) (per curiam); Sinclair v. Citi Mortg., Inc., 519

Fed.Appx. 737, 739 (3d Cir. 2013) (per curiam); Szubielski v. Pierce,

Prisons, 999 F. Supp. 2d 174, 177-78 (D.D.C. 2013).

Although the court often affords pro se plaintiffs an opportunity

to amend a complaint in recognition that “basic fairness, as well as

‘sound prudential reasons,’ counsel against most uses of the power to

dismiss cases sua sponte,” Gonzalez–Gonzalez v. United States, 257 F.3d

31, 37 (1st Cir. 2001), this is one of those cases in which it “is

crystal clear that the plaintiff cannot prevail and that amending the

complaint would be futile.” Id. at 36–37.

ORDER

Accordingly, the Court hereby ORDERS:

1. Plaintiff’s motion for leave to proceed in forma pauperis

is DENIED without prejudice.

2. Plaintiff’s motion for temporary restraining order is

DENIED without prejudice.

3. Plaintiff’s complaint is dismissed without prejudice

pursuant to 28 U.S.C. § 1915A.

SO ORDERED.

/s/ William G. Young

WILLIAM G. YOUNG

UNITED STATES DISTRICT JUDGE