DUNNS v. FORMICA et al
Filing
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MEMORANDUM OPINION. Signed by Judge Noel L. Hillman on 10/3/2013. (bdk, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HOWARD L. DUNNS,
Plaintiff,
v.
FRANK D. FORMICA, et al.,
Defendants.
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Civil Action No. 13-5012(NLH)
MEMORANDUM OPINION
APPEARANCES:
Howard L. Dunns
Atlantic County Justice Facility
5060 Atlantic Avenue
Mays Landing, NJ 08330
Plaintiff pro se
HILLMAN, District Judge
Plaintiff Howard L. Dunns, a prisoner 1 confined at Atlantic
County Justice Facility in Mays Landing, New Jersey, seeks to
bring this civil action in forma pauperis, without prepayment of
fees or security, asserting claims pursuant to 42 U.S.C. ' 1983.
Pursuant to Local Civil Rule 54.3, the Clerk shall not be
required to enter any suit, file any paper, issue any process,
1
Plaintiff does not state whether he is a pre-trial detainee or
a convicted and sentenced prisoner. In any application to reopen, he should clarify his status.
or render any other service for which a fee is prescribed,
unless the fee is paid in advance.
Under certain circumstances,
however, this Court may permit an indigent plaintiff to proceed
in forma pauperis.
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.
A prisoner who is denied in forma
pauperis status must pay the full $400, including the $350
filing fee and the $50 administrative fee, before the complaint
will be filed.
The Prison Litigation Reform Act of 1995, Pub. L. No. 104135, 110 Stat. 1321 (April 26, 1996) (the APLRA@), which amends
28 U.S.C. ' 1915, establishes certain financial requirements for
prisoners who are attempting to bring a civil action 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 and liabilities, 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.
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28 U.S.C. ' 1915(a)(2).
The prisoner must obtain this certified statement from the
appropriate official of each correctional facility at which he
was or is confined during such six-month period.
Id.
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.
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.
28 U.S.C.
' 1915(e)(2)(B) (in forma pauperis actions).
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
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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,
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 to submit a complete in
forma pauperis application as required by 28 U.S.C. ' 1915(a)(1),
(2); more specifically, the institutional account statements
submitted by Plaintiff were not certified by an appropriate
institution official.
See, e.g., Tyson v. Youth Ventures,
L.L.C., 42 F.App’x 221 (10th Cir. 2002); Johnson v. United
States, 79 Fed.Cl. 769 (2007).
To the extent Plaintiff asserts that correctional officials
have refused to provide the certified account statement, any
such assertion must be supported by an affidavit detailing the
circumstances of Plaintiff=s request for a certified
institutional account statement and the correctional officials=
refusal to comply, including the dates of such events and the
names of the individuals involved.
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The allegations of the Complaint do not suggest that
Plaintiff is in imminent danger of serious physical injury.
CONCLUSION
For the reasons set forth above, Plaintiff=s application for
leave to proceed in forma pauperis will be denied without
prejudice and 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. 2
An appropriate Order will be entered.
At Camden, New Jersey
s/ Noel L. Hillman
Noel L. Hillman
United States District Judge
Dated: October 3, 2013
2
Such an administrative termination is not a Adismissal@ 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); Dasilva v. Sheriff’s Dept., 43
Fed.Appx. 498, 502 (3d Cir. 2011) (“[T]he statute of limitations
is met when a complaint is submitted to the clerk before the
statute runs out … .”).
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