BARNES v. BROYLES et al

Filing 2

MEMORANDUM and ORDER IFP is DENIED and Clerk shall administratively terminate this matter. ORDERED Clerk shall send Plaintiff a blank IFP application and a copy of this Order. Signed by Judge Noel L. Hillman on 2/9/2013. (nz, )n.m.

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TUERE BARNES,
Plaintiff,
v.
B.O.P. OFFICER BROYLES,
Defendants.

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Civil No. 13-737(NLH)

MEMORANDUM AND ORDER

Plaintiff, Tuere Barnes, currently confined at FCI Fort Dix
in Fort Dix, New Jersey, seeks to bring a civil action in forma
pauperis,1 without prepayment of fees or security, asserting
claims pursuant to Bivens v. Six Unknown Fed. Narcotics Agents,
403 U.S. 388 (1971).

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

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

§ 1915.
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six-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 $350.00 filing fee.
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 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).
While he did file an “Application to Proceed in District Court
Without Prepaying Fees or Costs,” Plaintiff did not provide a
six-month account statement certified by the appropriate official
of the facility at which he is incarcerated as required by 28
U.S.C. § 1915(a)(2).

(Dkt. 1-1.)

This Court expresses no opinion, at this time, as to whether
this action is subject to dismissal pursuant to 28 U.S.C.
§ 1915(e)(2)(B) or otherwise.
THEREFORE, it is on this

9th

day of February

, 2013;

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;
ORDERED that the Clerk of the Court shall send Plaintiff the
form entitled “Affidavit of Poverty and Account Certification
(Civil Rights)(DNJ-ProSe-007-A-(Rev. 09/09)) to be used by
Plaintiff in any future application to proceed in forma pauperis;
and it is further

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ORDERED that the Clerk of the Court shall send Plaintiff a
blank form to be used in the filing of a prisoner civil rights
complaint; 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 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, on the form set forth above or (2) the $350.00 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 further
ORDERED that the Clerk of the Court shall serve a copy of
this Order upon Plaintiff by regular U.S. mail.

At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge

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