Opinion
22-P-180
12-05-2022
ONYX WHITE v. DEPARTMENT OF CORRECTION & others.[1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Onyx White, a pro se plaintiff, appeals from a single justice order denying his request to waive the $315 entry fee in Docket No. 2021-J-0469 (underlying action). The plaintiff contends that the single justice erroneously concluded that he must pay an entry fee despite the lower court's already having found him indigent. We affirm, as he has not demonstrated that the single justice abused her discretion.
Background.
The plaintiff is an inmate at the Old Colony Correctional Center who filed an action against the Department of Correction, Carol Mici, and Stephen Kennedy. In the underlying action, the plaintiff sought sentence deductions for a period of time in which he was held as a pretrial detainee. The Superior Court dismissed the matter. After filing a notice of appeal, the plaintiff moved to waive the required entry fee, and submitted a supporting affidavit of indigency. The single justice considered the plaintiff's inmate account information, denied the motion, and ordered the plaintiff to pay the entry fee.
Discussion.
We review an order of the single justice "for errors of law and, if none appear, for abuse of discretion." Troy Indus., Inc. v. Samson Mfg. Corp., 76 Mass.App.Ct. 575, 581 (2010). See Highland Tap of Boston, Inc. v. Boston, 26 Mass.App.Ct. 239, 240 (1988) (applicable standard is "whether the single justice abused [her] discretion by entering an order without having a supportable basis for doing so").
Special procedures govern inmate requests for waiver of the entry fee. See G. L. c. 261, § 29. Where an inmate brings an action against the Commonwealth or its employees, the court will require the Commissioner of Correction "to file a copy of a current account statement of the inmate's account and a copy of the inmate's activity sheet for the preceding six months." G. L. c. 261, § 29 (a). Upon receipt of the account statement, "[t]he court shall order the inmate to pay, as a partial payment of any filing fees and court costs, 20 per cent of the preceding six months' average balance in the inmate's account." G. L. c. 261, § 29 (d) (1). Accordingly, as the defendants argue, where "20 per cent of the preceding six months' average balance" is more than the $315 entry fee, the inmate is not actually indigent and shall not be permitted to proceed in forma pauperis. See Commonwealth v. De'Amicis, 450 Mass. 271, 274 (2007) (G. L. c. 261, § 29, "makes it more difficult for an inmate bringing such an action to be adjudged indigent, by establishing far more rigorous standards for determining indigency than those generally applicable"); Longval v. Superior Court Dep't of the Trial Court, 434 Mass. 718, 719 (2001) (statute's stricter requirements intended to curb "frivolous prisoner litigation by instituting economic costs for prisoners wishing to file civil claims" [citation omitted]).
Here, the materials showed that the plaintiff had $734.76 in his personal account and $7,393.78 in his savings account - substantially more than the $315 entry fee the single justice ordered that he pay in order to proceed. "[I]n the case of prisoners, whose daily needs for food and shelter are largely met during confinement, special circumstances attend the determination of the ability to pay a reasonably reduced filing fee." Cepulonis v. Superintendent, Mass. Correctional Inst., Cedar Junction, 61 Mass.App.Ct. 699, 700 (2004). On these facts, we cannot say that the single justice abused her discretion in denying his motion to waive the entry fee.
Order of single justice dated May 25, 2021, affirmed.
The panelists are listed in order of seniority.