The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
LINCOLN LATHAM, )
Plaintiff, )
) CIVIL ACTION
v. ) NO. 23-12054-WGY
)
OFFICER JULIUS, )
Defendant, )
)
YOUNG, D.J. October 19, 2023
MEMORANDUM AND ORDER
Plaintiff Lincoln Latham initiated this action by filing
his self-prepared “Petition for Discovery against Defendant.”
Doc. No. 1. The Clerk’s Office assigned a case number and
entered the pleading on the docket as a complaint. Id. On
September 26, 2023, Latham filed a declaration in support of his
petition for discovery. Doc. No. 3.
For the reasons set forth below, if Latham wishes to
commence a civil action, he must (1) either pay the $402 filing
fee or show cause why the provisions of 28 U.S.C. § 1915(g) do
not bar him from proceeding without prepayment of the filing
fee; and (2) file a complaint that states a plausible claim for
relief.
I. Preliminary Screening
Because Latham is a prisoner plaintiff, this action is
subject to preliminary review pursuant to 28 U.S.C. § 1915A.
Section 1915A authorizes federal courts to dismiss a complaint
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(a) (screening).
In conducting this review, the court liberally construes
the pleadings because Latham is proceeding pro se. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972).
II. Latham Failed to File a Complaint
Latham states that on August 14, 2023, Officer Julius
wrongly accused Latham of possessing contraband and conducted a
pat-search. It is not entirely clear, but it appears that
Latham is claiming that the search of part of an effort by
defendant to “steal the plaintiff’s barbershop slip.” Latham
seeks to enjoin the defendant officer from conducting “pat-
searches in chow hall.”
Latham has not commenced an action because a complaint has
not been filed. See Fed. R. Civ. P. 3 (“A civil action is
commenced by filing a complaint with the court.”). “In the
absence of a complaint ... setting out the basis for
jurisdiction, the Court lacks the jurisdiction to grant either a
temporary restraining order (‘TRO’) or a preliminary
injunction.” Lowenthal v. Massachusetts, No. 14-13631-GAO, 2014
WL 5285615, at *2 (D. Mass. Oct. 14, 2014) (quoting Greene v.
Phila. Hous. Auth., No. 11–MC–60, 2011 WL 1833011 (E.D.Pa. May
11, 2011)); Latimore v. Boston Police Dep't, No. 14-13685-FDS,
2014 WL 4965867, at *2 (D. Mass. Oct. 1, 2014).
III. Prisoner Plaintiffs Not Entitled to Complete Fee Waiver
Because prisoner plaintiffs are not entitled to a complete
waiver of the filing fee, if Latham wishes to proceed with the
filing of a complaint, he must either pay the filing fee or file
of an application to proceed in district court without prepaying
fees or costs with a copy of his prison account statement. If
Latham is granted leave to proceed in forma pauperis, the court
will direct the appropriate prison official to withdraw an
initial partial payment from Latham’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).
However, pursuant to 28 U.S.C. § 1915(g), a prisoner is not
permitted to proceed in forma pauperis:
if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious,
or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious
physical injury.
28 U.S.C. § 1915(g). The Court’s records indicate that Latham
may have three cases that are prior dismissals for purposes of
this statute. See Latham v. Board of Bar Overseers, No. 11-
12296-NMG (D. Mass. June 18, 2012) (dismissed for failure to
state a claim); Latham v. Kennedy, No. 23-10121-RGS (D. Mass.
Apr. 10, 2023) (dismissed for failure to state a claim); Latham
v. Demissie, No. 23-10062-NMG (D. Mass. June 6, 2023) (dismissed
for failure to state a claim). In a separate action, Latham was
directed either to pay the filing fee or who good cause why the
provisions of 28 U.S.C. § 1915(g) do not bar him from proceeding
without prepayment of the filing fee. See 09/18/2023 Order,
Latham v Mici, 23-11897-RGS (Doc. No. 5).
Thus, if Latham wishes to commence a new civil action, he
cannot proceed without prepayment of the filing fee unless he
shows that the alleged misconduct set forth in his complaint
places him “under imminent danger of serious physical injury.”
28 U.S.C. § 1915(g).
IV. Further Proceedings
Because it is unclear whether Latham intended to initiate a
new civil action by filing his “Petition for Discovery against
Defendant,” Latham will be granted an opportunity to both file a
complaint and show cause why he is not barred from proceeding
without prepayment of the filing fee for a civil action.
In the event that Latham files a complaint, he is reminded
that his complaint will be subject to screening pursuant to 28
U.S.C. § 1915A and may result in a dismissal for purposes of 28
U.S.C. § 1915(g)’s limitation on future actions.
Under 28 U.S.C. § 1915A, the Court is required to conduct a
prompt threshold review of prisoner complaints in civil actions
that seek redress from a governmental entity or officers or
employees of a governmental entity, and to summarily dismiss any
claims that are frivolous, malicious, fail to state a claim on
which relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. An action or claim is
frivolous if "it lacks an arguable basis either in law or in
fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). An
action fails to state a claim on which relief may be granted if
it does not plead "enough facts to state a claim to relief that
is plausible on its face." Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). Conversely, a complaint is plausible on
its face "when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). A preliminary review of the claims presented
in Latham’s pleading suggests that it would be dismissed under
this standard and would then constitute a dismissal for failure
to state a claim upon which relief may be granted.
V. Conclusion
In accordance with the foregoing, the Court hereby orders
that if Latham wishes to proceed with this action, he must, on
or before November 10, 2023, (1) either pay the $402 filing fee
or show cause why the provisions of 28 U.S.C. § 1915(g) do not
bar him from proceeding without prepayment of the filing fee;
and (2) file a complaint that states a plausible claim for
relief. Failure to comply with these directives on or before
November 10, 2023, will result in the dismissal of this action.
SO ORDERED.
/s/ William G. Young
WILLIAM G. YOUNG
UNITED STATES DISTRICT JUDGE