MOTOLO v. FEDERAL BUREAU OF PRISONS, INC. et al
Filing
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MEMORANDUM OPINION. Signed by Judge Renee Marie Bumb on 9/26/2011. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PERRY FRANCIS MOTOLO,
Plaintiff,
v.
FEDERAL BUREAU OF PRISONS,
INC., et al.,
Defendants.
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Civil Action No. 11-2819 (RMB)
MEMORANDUM OPINION
APPEARANCES:
Plaintiff pro se
Perry Francis Motolo
F.C.I. Fort Dix
P.O. Box 2000
Fort Dix, NJ 08640
BUMB, District Judge
Plaintiff Perry Francis Motolo, a prisoner confined at the
Federal Correctional Institution at Fort Dix, New Jersey, seeks
to bring this civil action asserting violations of his
constitutional rights.
More specifically, Plaintiff alleges that
his present confinement is unconstitutional because of various
flaws in his criminal prosecution.1
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The Court notes that on February 4, 2008, Plaintiff
pleaded guilty to 27 counts of mail fraud, money laundering, tax
evasion, and other offenses, arising from a Ponzi scheme he
operated for ten years involving financial planning services.
See United States v. Motolo, Crim. No. 06-0033 (N.D. Ind.). In
an amended judgment filed August 29, 2008, the trial court
imposed an aggregate sentence of 294 months. Plaintiff appealed,
arguing that the judgment was void and seeking immediate release.
The United States Court of Appeals for the Seventh Circuit
dismissed the appeal for want of prosecution. See United States
v. Motolo, C.A. 08-2623 (7th Cir. Apr. 9, 2009). To date,
Plaintiff does not state the jurisdictional basis for this
action, nor does he state what relief he seeks.
The pleading
submitted here is denominated a “Private Administrative Remedy
Demand.”
This Court construes this as a civil action for
declaratory relief.
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.
Even if the prisoner is granted in forma pauperis status,
the prisoner must pay the full amount of the $350 filing fee in
Plaintiff has not filed a motion to vacate, set aside, or correct
the criminal judgement, pursuant to 28 U.S.C. § 2255, in the
sentencing court.
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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 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.
actions).
28 U.S.C. § 1915(e)(2)(B) (in forma pauperis
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,
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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 either to prepay the $350
filing fee or to 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).
Accordingly, he has not satisfied the
requirements for paying the filing fee or proceeding in forma
pauperis in a civil action.
Thus, this action will be
administratively terminated.2
2
This Court does not construe this action as one for a writ
of habeas corpus under 28 U.S.C. § 2241. Plaintiff has filed at
least three petitions for writ of habeas corpus pursuant to 28
U.S.C. § 2241, including one in this Court, all of which were
dismissed for lack of jurisdiction. See Motolo v. United States,
Civil No. 09-5340 (D.N.J.); Motolo v. United States, Civil No.
09-2403 (N.D. Cal.); Motolo v. United States, Civil No. 09-0691
(N.D.N.Y.).
Nevertheless, if this Court were to construe this action as
a petition for writ of habeas corpus under 28 U.S.C. § 2241, the
result would be the same. The filing fee for a petition for writ
of habeas corpus is $5.00. Pursuant to Local Civil Rule 54.3(a),
the filing fee is required to be paid at the time the petition is
presented for filing. Pursuant to Local Civil Rule 81.2(b),
whenever a prisoner submits a petition for writ of habeas and
seeks to proceed in forma pauperis, that petitioner must submit
(a) an affidavit setting forth information which establishes that
the petitioner is unable to pay the fees and costs of the
proceedings, and (b) a certification signed by an authorized
officer of the institution certifying (1) the amount presently on
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CONCLUSION
For the reasons set forth above, 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.3
An appropriate Order will be entered.
s/Renée Marie Bumb
Renée Marie Bumb
United States District Judge
Dated: September 26, 2011
deposit in the prisoner’s prison account and, (2) the greatest
amount on deposit in the prisoners institutional account during
the six-month period prior to the date of the certification. If
the institutional account of the petitioner exceeds $200, the
petitioner shall not be considered eligible to proceed in forma
pauperis. Local Civil Rule 81.2(c). Here, Plaintiff did not
prepay the $5.00 filing fee for a habeas petition as required by
Local Civil Rule 54.3(a), nor did he submit an application for
leave to proceed in forma pauperis. Thus, he has not satisfied
the filing fee requirement for a habeas petition, either.
3
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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