LOPEZ v. BARTKOWSKI et al
Filing
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MEMORANDUM & ORDER denying Plaintiff's application to proceed in forma pauperis; Ordering that is Plaintiff wishes to reopen the case, he shall notify this Court in writing within 30 days of entry of this Order. Signed by Judge Mary L. Cooper on 9/12/2011. (eaj)
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CARLOS JOSE LOPEZ,
Plaintiff,
v.
GREG BARTKOWSKI, et al.
Defendants.
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Civil Action No. 11-3717 (MLC)
MEMORANDUM & ORDER
28 U.S.C. Section 1915 establishes financial requirements
for prisoners who are attempting to bring a civil action or file
an appeal in forma pauperis.
A prisoner bringing a civil action
in forma pauperis must submit an affidavit, including a statement
of all assets, stating 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 the inmate trust fund account statement for the
6-month period immediately preceding the filing of the complaint.
28 U.S.C. § 1915(a)(2).
The prisoner must obtain this statement
from the appropriate official of each prison at which the
prisoner 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.
U.S.C. § 1915(b)(1).
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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
complaint 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.
28 U.S.C. § 1915(e)(2)(B).
If the
Court dismisses the complaint for any of these reasons, the
prisoner will not get the 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, the prisoner cannot
bring another action in forma pauperis unless the prisoner is in
imminent danger of serious physical injury.
28 U.S.C. § 1915(g).
In this case, Plaintiff filed a complaint pursuant to 42
U.S.C. § 1983 against Defendants Greg Bartkowski, Crystal Raupp
and Frank Bruno.
several pages.
The complaint as filed appears to be missing
Further, Plaintiff only filed a partial
application to proceed in forma pauperis and did not submit a
certified six month account statement.
Plaintiff later filed a
letter acknowledging that he had improperly filed his complaint
and requesting that the Court return his documents to him so he
can properly file his civil action.
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IT IS THEREFORE, on this
12th
day of September, 2011;
ORDERED that Plaintiff’s application to proceed in forma
pauperis is DENIED WITHOUT PREJUDICE; and it is further
ORDERED that the Clerk of the Court ADMINISTRATIVELY
TERMINATE this case, without filing the complaint or assessing a
filing fee; Plaintiff is informed that administrative termination
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. Del. State Police, 88 F.3d 188, 191
(3d Cir. 1996); see also Williams-Guice v. Board of Educ., 45
F.3d 161, 163 (7th Cir. 1995); and it is further
ORDERED that the Clerk of the Court 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, Clarkson S. Fisher U.S. Courthouse and Federal Bldg.,
402 East State Street, Trenton, New Jersey 08608, 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.
Plaintiff shall also
submit a complete copy of his complaint; and it is further
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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
ORDERED that the Clerk of the Court (1) serve a copy of this
Order and a copy of all other documents previously filed in this
case upon Plaintiff by regular U.S. mail, and (2) designate the
action as CLOSED.
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
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