MCNEIL v. NJ DEPARTMENT OF CORRECTIONS et al

Filing 2

MEMORANDUM ORDER IFP is DENIED and Clerk shall administratively terminate this case. ORDERED Clerk shall send Plaintiff a blank IFP application and a copy of this Order. Signed by Judge Noel L. Hillman on 6/8/2012. (nz, )n.m.

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KEITH BURTON MCNEIL,
Plaintiff,
v.
DEPARTMENT OF CORRECTIONS,
et al.,
Defendants.

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Civil No. 12-1972 (NLH)

MEMORANDUM AND ORDER

Plaintiff, currently confined at Southern State Correctional
Facility in Delmont, New Jersey, 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

1

Suits brought in forma pauperis are governed by 28 U.S.C.

§ 1915.
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6-month period immediately preceding the filing of his complaint.
28 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).
Specifically, Plaintiff failed to provide a certified six month
account statement.
THEREFORE, it is on this

8th

day of

June

, 2012;

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

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the Court, Mitchell H. Cohen Building & U.S. Courthouse, 4th &
Cooper Streets, Camden, NJ 0810, 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; 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/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge

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