RODRIGUEZ v. THE STATE OF NEW JERSEY et al

Filing 7

OPINION. Signed by Judge Renee Marie Bumb on 10/10/2013. (bdk, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
:
JEAN EMMANUEL RODRIGUEZ,
:
: Civil Action No. 13-5866 (RMB)
Plaintiff,
:
:
v.
:
:
BERNARD E. DELURY, JR. et al., :
:
Defendants.
:
_______________________________________
:
:
JEAN EMMANUEL RODRIGUEZ,
:
: Civil Action No. 13-4101 (RMB)
Plaintiff,
:
:
v.
:
:
THE STATE OF NEW JERSEY et al., :
:
Defendants.
:
_______________________________________
:
OPINION
APPLIES TO BOTH ACTIONS
The civil matter, Civil Action No. 13-5866 comes before the
Court upon the Clerk’s receipt of a § 1983 civil complaint
(“Complaint”) submitted by Jean Emmanuel Rodriguez (“Plaintiff”).
See Rodriguez v. DeLury, Civil Action No. 13-5866, Docket Entry
No. 1.

The Complaint arrived unaccompanied by Plaintiff’s filing

fee or application to proceed in this matter in forma pauperis.
See id.

The entire fee to be paid in advance of filing a civil
complaint is $400.

That fee includes a filing fee of $350 plus

an administrative fee of $50, for a total of $400.

A prisoner

who is granted in forma pauperis status will, instead, be
assessed a filing fee of $350 and will not be responsible for the
$50 administrative fee.1

A prisoner who is denied in forma

pauperis status must pay the full $400, including the $350 filing

1

The Prison Litigation Reform Act of 1995, Pub. L. No.
104-135, 110 Stat. 1321 (April 26, 1996) (“PLRA”), which amended
28 U.S.C. § 1915, established certain financial requirements for
prisoners who are attempting to bring a civil action in forma
pauperis. Under the PLRA, a prisoner must submit an affidavit,
including a statement of all assets and liabilities, which states
that the prisoner is unable to pay the fee. See 28 U.S.C. §
1915(a)(1). The prisoner also must submit a certified copy of
his/her inmate trust fund account statement for the six-month
period immediately preceding the filing of his complaint. See 28
U.S.C. § 1915(a)(2). If the prisoner is granted in forma
pauperis status, the prisoner must pay the full amount of the
$350 filing fee, in installments, as follows: 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 an installment payment equal to 20 % of the
preceding month’s income credited to the prisoner’s account. See
28 U.S.C. § 1915(b)(2). Moreover, once a complaint is filed upon
receipt of the filing fee or upon the grant of in forma pauperis
status, 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. See 28
U.S.C. §§ 1915(e)(2)(B); 1915A and 1997e. Furthermore, 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,
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. See 28
U.S.C. § 1915(g).
2

fee and the $50 administrative fee, before the complaint will be
filed.
Here, Plaintiff did not submit his $400 filing fee or his in
forma pauperis application with regard to Civil Action No. 135866.

Therefore, that matter became subject to administrative

termination with leave to prepay the filing fee or seek in forma
pauperis status.

See Papotto v. Hartford Life & Accident Ins.

Co., U.S. App. LEXIS 19660, at *26 (3d Cir. Sept. 26,
2013)(“administrative closings do not end the proceeding.
Rather, they are a practical tool used by courts to prune
overgrown dockets and are particularly useful in circumstances in
which a case, though not dead, is likely to remain moribund”).
However, Plaintiff’s history of litigation in this District
suggests that Plaintiff might have submitted the Complaint as a
pleading commencing a new civil matter in error.

This is so

because he has already commenced another civil action in this
District just a few months ago.

See Rodriguez v. State of New

Jersey (“Rodriguez-I”), Civil Action No. 13-4101 (RMB) (D.N.J.).
In that matter, Plaintiff sought and was granted in forma
pauperis status, and had the $350 filing fee assessed against him
to be collected in appropriate installments.
In Rodriguez-I, Plaintiff asserted a panoply of challenges
(all framed in terms of bald conclusions), seemingly referring to
his arrest and current state criminal prosecution.

3

See

generally, Rodriguez-I.

The Court thrice detailed to Plaintiff

the pleading requirement in connection with Rodriguez-I, see id.,
Docket Entries Nos. 2, 4 and 6, and allowed Plaintiff three
opportunities to replead.

See id., Docket Entries Nos. 2 to 6.

However, Plaintiff’s first and second amended pleadings, just as
his original Rodriguez-I pleading, failed to detail his facts and
kept reciting the very same bald conclusions, albeit paraphrasing
the same differently each time.

See Docket Entries Nos. 2 to 6.

On August 5, 2013, the Court dismissed Plaintiff’s second
amended pleading in Rodriguez-I for failure to state a claim.
See id., Docket Entry No. 6.

That dismissal, too, was without

prejudice, and Plaintiff was allowed one final opportunity to
file his third amended complaint alleging the actual facts of the
wrongs he wished to litigate and detailing how each particular
defendant was personally involved in those alleged wrongs.

See

id. at 4; cf. In re Suprema Specialties, Inc. Sec. Litig., 438
F.3d 256, 276-77 (3d Cir.2006) (a plaintiff must assert all the
essential factual background that would accompany “‘the first
paragraph of any newspaper story’ — that is, the ‘who, what,
when, where and how’ of the events at issue”) (citations
omitted).
Plaintiff did not file his third amended pleading in
Rodriguez-I.

Rather, perhaps inadvertently, he submitted the

4

pleading now docketed in Civil Action No. 13-5866, thus causing
the Clerk to commence this new matter.
Since Plaintiff’s challenges in Civil Action No. 13-5866
appear to be of the same nature and suffer of the same
deficiencies to those plaguing his first three rounds of
pleadings in Rodriguez-I, this Court has no certainty that
Plaintiff wished to abandon his Rodriguez-I litigation and
commence Civil Action No. 13-5866, that is, a new action that
would cause Plaintiff to incur another assessment of a filing fee
and risk another “strike.”
Therefore, this Court finds it prudent to construe the
Complaint as Plaintiff’s third amended pleading intended for
filing in Rodriguez-I.

The Court will direct the Clerk to file

the Complaint in Rodriguez-I and will dismiss without prejudice,
for failure to state a claim, while extending Plaintiff’s time to
take advantage of his final opportunity to detail his claims with
regard to each Defendant, i.e., to inform the Court as to what
exactly occurred, how it occurred, when it occurred, how each
Defendant was personally involved in these occurrences, why
Plaintiff is of the opinion that these occurrences violated his
rights, etc.2

See Iqbal, 556 U.S. at 677-78.

2

In other words, Plaintiff shall refrain from asserting
generalities, conclusory statements, emotional accusations, etc.
Rather, he must state his facts as if he were telling a story: so
to allow this Court an opportunity to screen his allegations and
5

An appropriate Order follows.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: October 10, 2013

determine whether they plausibly assert a viable challenge.
Ashcroft v. Iqbal, 556 U.S. 662 (2009).
6

See