RAINES v. LAPPIN et al
Filing
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MEMORANDUM, ORDER IFP is DENIED and Clerk shall administratively terminate this case. ORDER Clerk shall send a copy of this Order upon Plaintiff with a blank IFP application. Signed by Judge Robert B. Kugler on 10/5/2011. (nz, )n.m.
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JAMES O. RAINES,
Plaintiff,
v.
HAVELY G. LAPPIN, et al.,
Defendants.
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Civil No. 11-5681 (RBK)
MEMORANDUM AND ORDER
Plaintiff, confined at FCI Elkton in Elkton, Ohio, 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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Suits brought in forma pauperis are governed by 28 U.S.C.
§ 1915.
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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 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
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).
THEREFORE, it is on this
5th
day of
October
, 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
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
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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 finally
ORDERED that the Clerk of the Court shall serve a copy of this
Order upon Plaintiff by regular U.S. mail.
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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