-AMD STELL v. RODRIGUEZ et al, No. 1:2011cv04562 - Document 2 (D.N.J. 2011)
Court Description: OPINION. Signed by Judge Noel L. Hillman on 8/9/2011. (bdk, )
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UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY JOVITO STELL, Plaintiff, v. MICHAEL RODRIGUEZ, et al., Defendants. : : : : : : : : : Civil Action No. 11-4562 (NLH) MEMORANDUM OPINION APPEARANCES: Plaintiff pro se Jovito Stell F.C.I. Fairton P.O. Box 420 Fairton, NJ 08320 HILLMAN, District Judge Plaintiff Jovito Stell, a prisoner confined at the Federal Correctional Institution at Fairton, New Jersey, seeks to bring this civil action, asserting claims pursuant to 42 U.S.C. § 1983. Plaintiff has neither prepaid the $350 filing fee for a civil action nor applied for leave to proceed in forma pauperis. Civil actions brought in forma pauperis are governed by 28 U.S.C. § 1915. The Prison Litigation Reform Act of 1995, Pub. L. No. 104-135, 110 Stat. 1321 (April 26, 1996) (the PLRA ), which amends 28 U.S.C. § 1915, establishes certain financial requirements for prisoners who are attempting to bring a civil action or file an appeal in forma pauperis. Under the PLRA, a prisoner seeking to bring a civil action in forma pauperis must submit an affidavit, including a statement of all assets, which states that the prisoner is unable to pay the fee. 28 U.S.C. § 1915(a)(1). The prisoner also must submit a certified copy of his inmate trust fund account statement(s) for the six-month period immediately preceding the filing of his complaint. 28 U.S.C. § 1915(a)(2). The prisoner must obtain this certified statement from the appropriate official of each prison at which he was or is confined. Id. Even if the prisoner is granted in forma pauperis status, the prisoner must pay the full amount of the $350 filing fee in installments. 28 U.S.C. § 1915(b)(1). In each month that the amount in the prisoner s account exceeds $10.00, until the $350.00 filing fee is paid, the agency having custody of the prisoner shall assess, deduct from the prisoner s account, and forward to the Clerk of the Court an installment payment equal to 20 % of the preceding month s income credited to the prisoner s account. 28 U.S.C. § 1915(b)(2). Plaintiff may not have known when he submitted his complaint that he must pay the filing fee, and that even if the full filing 2 fee, or any part of it, has been paid, the Court must dismiss the case if it finds that the action: (1) is frivolous or malicious; (2) fails to state a claim upon which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. actions). 28 U.S.C. § 1915(e)(2)(B) (in forma pauperis See also 28 U.S.C. § 1915A (dismissal of actions in which prisoner seeks redress from a governmental defendant); 42 U.S.C. § 1997e (dismissal of prisoner actions brought with respect to prison conditions). If the Court dismisses the case for any of these reasons, the PLRA does not suspend installment payments of the filing fee or permit the prisoner to get back the filing fee, or any part of it, that has already been paid. If the prisoner has, on three or more prior occasions while incarcerated, brought in federal court an action or appeal that was dismissed on the grounds that it was frivolous or malicious, or that it failed to state a claim upon which relief may be granted, he cannot bring another action in forma pauperis unless he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g). In this action, Plaintiff failed either to prepay the $350 filing fee or to submit a complete in forma pauperis application as required by 28 U.S.C. § 1915(a)(1), (2), including a certified account statement. See, e.g., Tyson v. Youth Ventures, L.L.C., 3 42 Fed.Appx. 221 (10th Cir. 2002); Johnson v. United States, 79 Fed.Cl. 769 (2007). The allegations of the Complaint do not suggest that Plaintiff is in imminent danger of serious physical injury and there is a serious question as to whether Plaintiff has chosen the proper venue to litigate his claims.1 CONCLUSION For the reasons set forth above, the Clerk of the Court will be ordered to administratively terminate this action, without 1 Indeed, the Court notes that the facts of the Complaint relate to events that transpired entirely in Oklahoma and that all defendants are located in Oklahoma. It is questionable whether venue lies in this District. See 28 U.S.C. § 1391(b). A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. (emphases added). 4 filing the complaint or assessing a filing fee. Plaintiff will be granted leave to move to re-open within 30 days.2 An appropriate Order will be entered. At Camden, New Jersey /s/ Noel L. Hillman Noel L. Hillman United States District Judge Dated: August 9, 2011 2 Such an administrative termination is not a dismissal for purposes of the statute of limitations, and if the case is reopened pursuant to the terms of the accompanying Order, it is not subject to the statute of limitations time bar if it was originally filed timely. See Houston v. Lack, 487 U.S. 266 (1988) (prisoner mailbox rule); McDowell v. Delaware State Police, 88 F.3d 188, 191 (3d Cir. 1996); see also Williams-Guice v. Board of Education, 45 F.3d 161, 163 (7th Cir. 1995). 5
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