WATFORD v. SCIORE
Filing
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MEMORANDUM, OPINION. Signed by Judge Noel L. Hillman on 9/26/2011. (nz, )
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KENNY WATFORD,
Plaintiff,
v.
LIEUTENANT ROBERT SCIORE,
Defendant.
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Civil Action No. 11-5111 (NLH)
MEMORANDUM OPINION
APPEARANCES:
Plaintiff pro se
Kenny Watford
Cumberland County Department of Correction
P.O. Box 717
Bridgeton, NJ 08302
HILLMAN, District Judge
Plaintiff Kenny Watford, a prisoner confined at Cumberland
County Department of Correction in Bridgeton, New Jersey, seeks
to bring this civil action in forma pauperis, without prepayment
of fees or security, asserting claims pursuant to 42 U.S.C.
§ 1983.
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.
Plaintiff has
complied with these requirements.
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).
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Plaintiff may not have known when he submitted his complaint
that he must pay the full $350 filing fee,1 and that even if the
full filing 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.
pauperis actions).
28 U.S.C. § 1915(e)(2)(B) (in forma
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
1
The form of Application for leave to proceed in forma
pauperis that Plaintiff used does not state the amount of the
filing fee. However, Plaintiff used an out-of-date complaint
form which states that the filing fee is $120. In fact, the
filing fee is now $350.
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he is in imminent danger of serious physical injury.
28 U.S.C. § 1915(g).
In this action, Plaintiff did 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., 42 Fed.Appx. 221 (10th Cir. 2002);
Johnson v. United States, 79 Fed.Cl. 769 (2007).
However, as
noted previously, Plaintiff used an out-of-date complaint form
which states that the filing fee is $120; to the contrary, the
filing fee is now $350.
To ensure that Plaintiff understands
that the filing fee is now $350 and to ensure that Plaintiff
understands that if he is granted leave to proceed in forma
pauperis, he must submit to periodic withdrawals from his
institutional account until the $350 is paid, this Court will
deny without prejudice the Application for leave to proceed in
forma pauperis and will grant Plaintiff leave to move to re-open
if he wishes to proceed with the understanding that he must
eventually pay the full $350 filing fee.
The allegations of the Complaint do not suggest that
Plaintiff is in imminent danger of serious physical injury.
CONCLUSION
For the reasons set forth above, Plaintiff’s application for
leave to proceed in forma pauperis will be denied without
prejudice and the Clerk of the Court will be ordered to
administratively terminate this action, without filing the
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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: September 26, 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).
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