WENK v. NEW JERSEY STATE DEPT. OF CORRECTIONS
Filing
3
ORDER denying without prejudice Pltf's IFP application; administratively terminating this action; that Pltf may have the case reopened if, within 30 days, Pltf either pre-pays the $350.00 filing fee or files a completed IFP with prison acco unt statement; that Pltf shall submit, together with his filing fee or his proper IFP application, his amended complaint as instructed in the within Order; directing Clerk to serve this Order upon Pltf by certified mail, r.r.r. together with a blank IFP application and blank civil complaint form; that the Clerk shall close the file by making a new and separate entry on the docket reading "CIVIL CASE TERMINATED". Signed by Judge Peter G. Sheridan on 9/6/2011. (gxh)
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UNITED STATES I)ISTRICT COURT
DISTRICT OF NEW JERSEY
MICHAEL WENK.
Civil Action No. 11-4430 (PGS)
Plaintiff.
ORDER
V.
NEW JERSEY STATE DEPT. OF
CORRECTIONS,
Defendant.
Plaintiff submitted a civil Complaint pursuant to 42 U.S.C.
§ 1983 without a filing fee
and without an application to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915, and it
appearing that:
1. The Clerk will not file a civil rights complaint unless the person seeking relief pays the
entire applicable filing fee in advance or the person applies for and is granted
status pursuant to 28 U.S.C.
§ 1915. See Local Civil R.
forma pauperis,
5.1(f).
2. The filing fee for a civil rights complaint is $350.00. $ç 28 U.S.C.
§ 1914(a).
3. If a prisoner seeks permission to file a civil rights complaint in forma pauperis, the
Prison Litigation Reform Act (PLRA”) requires the prisoner to file an affidavit of poverty and
a certified prison account statement for the six-month period immediately preceding the
filing of the complaint. See 28 U.S.C.
§
1915(a)(2).
4. The PLRA further provides that. if the prisoner is granted permission to file the
complaint in forma pauperis, then the Court is required to assess the $350.00 filing fee against
the prisoner and collect the fee by directing the agency having custody of the prisoner to deduct
installment payments from the prisoner’s prison account equal to 20% of the preceding month’s
income credited to the account fr each month that the balance of the account exceeds $10.00.
See 28 U.S.C.
§ 1915(b).
5. In addition. if the prisoner is granted permission to proceed in forma pauperis, then the
PLRA requires this Court to screen the complaint for dismissal and to dismiss any claim that is
frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary
relief from an defendant who is immune from such relief.
6. The PLRA further provides that, if a prisoner has, on three or more occasions while
incarcerated, brought an action or appeal in a federal court that was dismissed as frivolous or
malicious, for failure to state a claim upon which relief may be granted, or because it seeks
monetary relief from immune defendants, then the prisoner may not bring another action
pauperis unless he or she is in imminent danger of serious physical injury. See 28 U.S.C.
forma
§
1915(g).
7. The above-named Plaintiff is a prisoner. Plaintiff failed to pay his filing fee, or submit
his six-month prison account statement and his affidavit of poverty.
8. Plaintiffs Complaint asserts that certain cells Jn the New Jersey State Prison
(“NJSP”), the facility where Plaintiff has been housed for a number of years, experienced
unusually high heat during the July 2011 heat wave suffered by the State of New Jersey in
general and the City of Trenton (where the NJSP is located) in particular.’ Plaintiff, apparently.
See <<http://www.weather.com/weather/monthly/USNJO524?month=_ 1>> (Showing
that, between July 11 and July 3 1. 2011, the daytime temperature varied between 94 to 1050.
Page 2 of 5
attributed the high heat in NJSP cells not to the record-breaking heat wave but, rather, to the
alleged insufficiency oCNJSP air-conditioning system. In connection with that assertion.
2
Plaintiff alleged that certain inmates suffered of heat strokes and analogous injuries. Plaintiff
also speculated that he, too, might eventually suffer some form of injury if the heat wave
continues or repeats. The Complaint named sole defendant, “New Jersey Department of
Corrections.”
9. However, the Department of Corrections is not an entity cognizable as “person” for
the purposes of a
§ 1983 suit.
Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989);
Grabow v. Southern State Correctional Facility, 726 F. Supp. 537, 538-39 (D.N.J. 1989); see
Marsden v. Federal BOP, 856 F. Supp. 832, 836 (S.D.N.Y. 1994).
10. Moreover, Plaintiff cannot raise claims on behalf of other inmates who actually
suffered an injury or are facing an imminent injury; this is so because Plaintiff lacks standing to
raise these challenges. See Whitmore v. Arkansas, 495 U.S. 149, 154-64 (1990) (detailing the
test forj
i representation, one element of which is the injured party’s lack of capacity to
bring his/her own challenges).
IT IS THEREFORE on this
6
day of_________________ 2011,
,
ORDERED that Plaintiffs application to proceed fti forma pauperis is DENIED
WITHOUT PREJUDICE; and it is further
ORDERED that the Clerk shall administratively terminate this action without filing the
Complaint or assessing a filing fee; and it is further
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Although Plaintiffs Complaint continuously referred to “air condensing’ systems. the
Court presumes Plaintiff intended to refer to “air-conditioning” systems.
Page 3 of 5
ORDERED that administrative termination is not a “dismissal” for purposes of the statute
of limitations, and that if this
§ 1983 case is reopened pursuant to the terms of this Order, it is not
thereby subject to the statute of limitations bar, provided the original Complaint was timely. .çç
Houston v. Lack. 487 U.S. 266 (1988); McDowell v. Delaware State Police. 88 F.3d 188. 191
(3d Cir. 1996); Williams-Guice v. Board of Education, 45 F.3d 161. 163 (7th Cir. 1995); and it is
further
ORDERED that Plaintiff may have the above entitled case reopened if, within 30 days of
the date of the entry of this Order. Plaintiff either pre-pays the $350.00 filing fee or files with the
Clerk Plaintiff’s affidavit of poverty and his certified prison account statement for the six-month
period immediately preceding the filing of the complaint, as required by 28 U.S.C.
§ 1915(a);
and it is further
ORDERED that, in the event Plaintiff timely prepays his $350.00 filing fee or submits his
affidavit of poverty and his certified prison account statement, then the Court will enter an order
directing the Clerk to reopen the case; and it is further
ORDERED that, in the event Plaintiff timely prepays his $350.00 filing fee (or submits
his affidavit of poverty and his certified prison account statement), Plaintiff shall submit, together
with his filing fee or his proper in forma pauperis application, Plaintiffs amended complaint
detailing the actual injuries Plaintiff himself suffered or the actual imminent injuries Plaintiff is
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facing. Plaintiff also shall name, in his amended complaint, those defendants whose personal
Claims based on a merely hypothetical or speculative injuries are not actionable. See.
çg.. Dawson v. Frias, 2010 U.S. Dist. LEXIS 30513 at *8 (D.N.J. Mar. 30. 2010) (“speculation
as to what might or might not happen in the future” cannot serve as a basis For a valid claim)
(citing Rouse v. Pauliilo. 2006 U.S. Dist. LEXIS 17225 (D.N.J. Apr. 5. 2006) (dismissing
speculative claim and citing Kirby v. Siegelman. 195 F.3d 1285 (11th Cir. 1999)): Pilkey v.
Page 4 of 5
actions resulted in Plaintiffs injuries or who, upon being apprised of the imminent danger faced
by Plaintiff, refused Plaintiff protection from such danger: and it is further
ORDERED that the Clerk shall serve this Order upon Plaintiff by certified mail, return
receipt requested, together with a blank j forma ppgjs application for incarcerated individuals
seeking to file a civil complaint and a blank civil complaint form; and it is finally
ORDERED that the Clerk shall close the file in this matter by making a new and separate
entry on the docket reading “CIVIL CASE TERMINATED.”
PETER G. SHERIDAN
United States District Judge
/
Lappin, 2006 U.S. Dist. LEXIS 44418. at *45 (D.N.J. June 26. 2006) (Plaintiffs [anxiety
paraphrased as his claim ofj fail[sj to state a claim upon which relief may be granted”); Patterson
v. Lillev, 2003 US. Dist. LEXIS 11097 (S.D.N.Y. June 20, 2003) (defendants could only be
Ibund indifferent to an existing condition, not to a speculative future injury)). Therefore.
Plaintiff shall not assert. as injury,” his speculative fears that he might suffer an injury, rather.
he must assert the actual physical symptoms he, in fact. experienced and which he conveyed to
his prison officials and, in conjunction with these assertions, he must also detail the facts
indicating that his prison officials refused to alter his conditions of confinement to alleviate the
injury he was suffering or to prevent the imminent danger of such injury after they learned about
such imminent danger.
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