United States District Court, D. Minnesota
M. MENENDEZ UNITED STATES MAGISTRATE JUDGE
November 27, 2017, Plaintiff Marvin Spencer -- a prisoner in
West Virginia-- filed the Complaint in this case alleging
that he lost sight in his left eye due to medical
indifference by jail officials at Sherburne County Jail. He
did not pay any filing fee, but instead filed an application
seeking leave to proceed in forma pauperis
(“IFP”). See ECF No. 2. Mr.
Spencer's IFP application is now before the Court and
must be addressed before any other action is taken in this
Mr. Spencer's Complaint was docketed, initiating this
proceeding, he had filed another case on November 6, 2017,
raising similar claims against a smaller group of defendants.
The complaint in that case concerned injuries to his toes due
to medical indifference in the treatment of diabetes while at
Sherburne County Jail. See Case No. 17-cv-5035
(DSD/TNL). Mr. Spencer has since paid a substantial portion
($319.72) of the $350 filing fee in that proceeding. Case No.
17-cv-5035 (DSD/TNL), ECF Nos. 5-7, 9, 11. On November 13,
2017, two weeks before this case was opened, Magistrate Judge
Tony Leung issued an Order indicating that Mr. Spencer should
consider amending his complaint (Case No. 17-cv-5035, ECF No.
3 at 3 n.2), and he was later ordered to file an amended
complaint due to deficiencies in his pleading and advised
that he may want to combine both proceedings to avoid payment
of two filing fees (Case No. 17-cv-5035, ECF No. 8). On
February 27, 2018, Judge Leung recommended that Mr.
Spencer's first case be dismissed without prejudice
because he did not file an amended complaint (Case No.
17-cv-5035, ECF No. 10), and United States District Judge
David S. Doty adopted that recommendation on March 21, 2018
(Case No. 17-cv-5035, ECF No. 13).
reviewed the record in both cases, it appears to this Court
that Mr. Spencer likely intended the initial Complaint in
this action to have been filed in response to Judge
Leung's November 13, 2017 Order's suggestion that he
file an amended pleading. His claims in both cases arise from
injuries he attributes to medical indifference by Sherburne
County jail officials during his time at that facility.
Although his initial Complaint here adds allegations
concerning loss of his eyesight, exhibits attached to both
pleadings discuss injures to his toes. Mr. Spencer also
checked a box that he had not filed “other
lawsuits” in federal court dealing with the same facts
involved in this action, suggesting that he did not intend
this Complaint to start a separate proceeding, but viewed it
as an extension of his earlier case.
Court finds that the purpose of the Prison Litigation Reform
Act-to require prisoner-litigants to pay filing fees in
full-would not be furthered by assuming that Mr. Spencer
intended to start two separate actions. Ashley v.
Dilworth, 147 F.3d 715, 716 (8th Cir. 1998) (discussing
the purpose of the Prison Litigation Reform Act). In light of
the unique procedural posture of this proceeding and the
history of his earlier case, the Court concludes that Mr.
Spencer's IFP application in this case should be granted
and the deposits received in Case No. 17-cv-5035 should be
applied toward the $350 filing fee here. Because Mr. Spencer
has already paid $319.72 toward the statutory filing fee, the
unpaid balance applicable to this proceeding is $30.28.
IFP status is being granted, Mr. Spencer is entitled to have
all Defendants in this action served by the United States
Marshal. See 28 U.S.C. § 1915(d); Fed.R.Civ.P.
4(c)(3). Marshal service cannot be accomplished at this time,
however, because Mr. Spencer has not submitted the
documentation needed for service of process. To cure this
deficiency, Mr. Spencer must submit a properly completed
Marshal Service Form (Form USM-285) for each Defendant.
See Lee v. Armontrout, 991 F.2d 487, 489 (8th Cir.
1993) (per curiam) (noting that it is the pro se
plaintiff's “responsibility to provide proper
addresses for service on [the defendants]”). If Mr.
Spencer does not satisfy this requirement within the next
thirty days, he will be deemed to have abandoned this action,
and it will be recommended that the case be dismissed without
prejudice for lack of prosecution. See Fed. R. Civ.
P. 41(b). If Mr. Spencer does satisfy this requirement in a
timely manner, then a summons shall be issued, and service of
process shall be performed by the U.S. Marshal.
on the foregoing, and on all of the files, records, and
proceedings herein, IT IS HEREBY ORDERED THAT:
Spencer's Application to Proceed in District Court
without Prepaying Fees or Costs [ECF No. 2] is GRANTED.
unpaid balance of the statutory filing fee for this action is
$30.28. Mr. Spencer must pay the unpaid balance of the
statutory filing fee for this action in the manner prescribed
by 28 U.S.C. § 1915(b)(2), and the Clerk of Court shall
provide notice of this requirement to the authorities at the
institution where Mr. Spencer is confined.
Within 30 days after the date of this Order, Mr. Spencer must
submit a properly completed Marshal Service Form (USM-285)
for each Defendant, failing which it will be recommended that
the action be dismissed without prejudice pursuant to
Mr. Spencer complies with the requirements of this Order in a
timely manner, a summons shall be issued, and the U.S.
Marshal shall effect service of process on each Defendant for
whom a properly completed Marshal Service Form is submitted.
copy of this Order shall be served together with the summons
and Mr. Spencer's Complaint, so the Defendants will be
apprised of their obligations to file a responsive pleading.
Defendant on whom service of process is properly effected
shall file a ...