United States District Court, D. Maine
ROY A. DAY, Plaintiff
LORNA R. GREY, et al., Defendants
ORDER ON MOTIONS FOR IN FORMA PAUPERIS STATUS AND
SERVICE OF PROCESS AND RECOMMENDED DECISION ON 28 U.S.C.
§ 1915(e)(2) REVIEW
H. Rich III United States Magistrate Judge
me for a second time are the plaintiff's motions for
leave to proceed in forma pauperis and for aid in
serving process on the defendants. See ECF Nos. 2-3.
When those motions initially were referred to me, I stayed
this case pending the outcome of the plaintiff's appeal
to the First Circuit of this court's dismissal without
prejudice of a nearly identical action, Day v. Grey
(“Day I”), No. 2:16-cv-00275-JAW (D.
Me.). See ECF No. 12. The First Circuit denied that
appeal, issuing its mandate on December 27, 2017.
See ECF Nos. 36-37, Day I. That effectively
lifted the stay of the instant case (“Day
II”), paving the way for it to proceed.
reasons that follow, I grant the plaintiff's request for
leave to proceed in forma pauperis, recommend that
the court allow the action to proceed after review under 28
U.S.C. § 1915(e)(2)(B), and, contingent on the
court's acceptance of that recommendation, grant his
motion for service, which I liberally construe to seek
service on all four defendants.
In Forma Pauperis Status
forma pauperis status is available under 28 U.S.C.
§ 1915(a)(1). However, section 1915(e)(2)(B) also
provides, in relevant part:
[T]he court shall dismiss the case at any time if the court
determines that . . .
action or appeal -
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted;
(iii) seeks monetary relief against a defendant who is immune
from such relief.
28 U.S.C. § 1915(e)(2)(B).
[under 28 U.S.C. § 1915] are often made sua
sponte prior to the issuance of process, so as to spare
prospective defendants the inconvenience and expense of
answering such complaints.” Nietzke v.
Williams, 490 U.S. 319, 324 (1989); see also Mallard
v. U.S. Dist. Ct. S. D. Iowa, 490 U.S. 296, 307-08
(1989) (“Section 1915(d), for example, authorizes
courts to dismiss a ‘frivolous or malicious'
action, but there is little doubt they would have power to do
so even in the absence of this statutory provision.”)
application to proceed without prepaying fees or costs, the
plaintiff reports that he has monthly income of $694.00 in
Social Security benefits and $59.00 in Social Security Income
disability benefits, has $10.00 in a bank account, owns a
2016 Chevrolet Spark on which he owes $15, 000.00, has
approximately $1, 200 in monthly expenses, and has credit
card debt of $300, 000. ECF No. 2, Day II. These
financial circumstances entitle him to proceed in forma