CRENSHAW v. LANIGAN et al, No. 1:2012cv04187 - Document 2 (D.N.J. 2012)
Court Description: MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 7/19/2012. (nz, )n.m.
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UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY DANIEL A. CRENSHAW, Plaintiff, v. GARY M. LANIGAN, et al., Defendants. : : : : : : : : : Civil Action No. 12-4187 (JBS) MEMORANDUM OPINION APPEARANCES: Plaintiff pro se Daniel A. Crenshaw South Woods State Prison Bridgeton, NJ 08302 SIMANDLE, Chief Judge Plaintiff Daniel A. Crenshaw, a prisoner confined at South Woods State Prison 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 and liabilities, 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 correctional facility at which he was or is confined during such six-month period. 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 full $350 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: (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 2 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 to submit a complete in forma pauperis application as required by 28 U.S.C. § 1915(a)(1), (2). 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). More specifically, although Plaintiff submitted a complete certified institutional account statement, he failed to submit a complete affidavit as to his other assets and liabilities. In addition, Plaintiff used an out-of-date form of application for leave to proceed in forma pauperis, which states that the filing fee is $150 and includes an authorization for 3 withdrawals from Plaintiff s institutional account until the (incorrect) filing fee of $150 is paid. The filing fee is now $350 and it is not clear that Plaintiff would wish to proceed with this action in light of the higher 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 complaint or assessing a filing fee. Plaintiff will be granted leave to apply to re-open within 30 days.1 Because the institutional account statement submitted is complete and certified, Plaintiff does not need to submit a new institutional account statement, but he must accompany any application to reopen with a complete affidavit as to his assets and liabilities. 1 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). 4 An appropriate Order will be entered. s/ Jerome B. Simandle Jerome B. Simandle Chief Judge United States District Court Dated: July 19, 2012 5
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