RICHARDSON v. CASCIATO et al
Filing
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MEMORANDUM AND ORDERED that Pltf's IFP application is DENIED, without prejudice; ORDERED that the Clerk shall administratively terminate this case, without filing the complaint, etc; ORDERED that the Clerk shall send Pltf a blank IFP form (sent); ORDERED that if Pltf wishes to reopen this case, he shall so notify the Court in writing within 30 days, etc. Signed by Judge Jerome B. Simandle on 9/16/2011. (dmr)(n.m.)
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ALLY J. RICHARDSON,
Plaintiff,
v.
OFFICER STEVEN CASCIATO,
et al.,
Defendant.
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Civil No. 11-5220 (JBS)
MEMORANDUM AND ORDER
Plaintiff, currently confined at the Camden County
Correctional Facility, in Camden, New Jersey, seeks to bring a
civil action in forma pauperis,1 without prepayment of fees or
security, asserting claims pursuant to 42 U.S.C. § 1983.
The
Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110
Stat. 1321 (April 26, 1996) (the “Act”), 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 Act, a prisoner bringing 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 for the
6-month period immediately preceding the filing of his complaint.
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§ 1915.
Suits brought in forma pauperis are governed by 28 U.S.C.
28 U.S.C. § 1915(a)(2).
The prisoner must obtain this 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 $350.00 filing fee.
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 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
fee, or any part of it, has been paid, the Court must dismiss the
case if it finds that the action is: (1) 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.
28 U.S.C. § 1915(e)(2)(B).
If the Court dismisses
the case for any of these reasons, the Act does not permit the
prisoner to get his filing fee back.
If the prisoner has, on three or more prior occasions while
incarcerated, brought an action or appeal in a court that was
dismissed on any of the grounds listed above, he cannot bring
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another action in forma pauperis unless he is in imminent danger
of serious physical injury.
28 U.S.C. § 1915(g).
In this case, Plaintiff failed to submit a complete in forma
pauperis application as required by 28 U.S.C. § 1915(a)(1), (2).
Specifically, Plaintiff did not include a six-month account
statement certified the appropriate official of the facility at
which he is incarcerated as required by 28 U.S.C. § 1915(a)(2).
Additionally, Plaintiff has used an out-of-date in forma
pauperis application form which states that the filing fee is
$120.00.
To the contrary, the filing fee for a civil action is
$350.00.
If Plaintiff is granted leave to proceed in forma
pauperis in this action, the Court may enter an Order assessing
the $350.00 filing fee and directing that assessments be
withdrawn from Plaintiff’s prison account until the $350.00
filing fee is paid.
See 28 U.S.C. § 1915.
This Court expresses no opinion, at this time, as to whether
this action is subject to dismissal pursuant to 28 U.S.C.
§ 1915(e)(2)(B) or otherwise.
THEREFORE, it is on this
16th
day of
September , 2011;
ORDERED that Plaintiff’s application to proceed in forma
pauperis is hereby DENIED, without prejudice; and it is further
ORDERED that the Clerk of the Court shall administratively
terminate this case, without filing the complaint or assessing a
filing fee; Plaintiff is informed that administrative termination
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is not a “dismissal” for purposes of the statute of limitations,
and that if the case is reopened, 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); and it is further
ORDERED that the Clerk of the Court shall send Plaintiff a
blank form application to proceed in forma pauperis; and it is
further
ORDERED that if Plaintiff wishes to reopen this case, he
shall so notify the Court, in writing addressed to the Clerk of
the Court, Mitchell H. Cohen Building and U.S. Courthouse, Fourth
and Cooper Streets, Camden, New Jersey, 08101, within 30 days of
the date of entry of this Order; Plaintiff’s writing shall
include either (1) a complete, signed in forma pauperis
application, including a certified six-month prison account
statement, or (2) the $350 filing fee; and it is further
ORDERED that upon receipt of a writing from Plaintiff
stating that he wishes to reopen this case, and either a complete
in forma pauperis application or filing fee within the time
allotted by this Court, the Clerk of the Court will be directed
to reopen this case; and it is further
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ORDERED that if Plaintiff does not wish to proceed with this
action with a $350.00 filing fee, he must indicate his intent to
withdraw the Complaint by filing with the Court, within 30 days
following entry of this Order, a letter stating his intent to
withdraw the Complaint; and it is further
ORDERED that failure to so file such a letter of withdrawal
may result, if Plaintiff is granted leave to proceed in forma
pauperis, in an Order assessing the full $350.00 filing fee, to
be paid by monthly withdrawals from Plaintiff’s institutional
account, pursuant to 28 U.S.C. § 1915, regardless of the outcome
of the litigation; and it is finally
ORDERED that the Clerk of the Court shall serve a copy of
this Order upon Plaintiff by regular U.S. mail.
s/ Jerome B. Simandle
Jerome B. Simandle
United States District Judge
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