MASSARO v. BALICKI et al

Filing 14

OPINION. Signed by Judge Noel L. Hillman on 6/8/2015. (dmr)(n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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Plaintiff,
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v.
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KAREN BALICKI, et al.,
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Defendants.
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LAWRENCE MASSARO,

Civ. No. 13-6958 (NLH)
OPINION

APPEARANCES:
Lawrence Massaro, # 578722/SBI 903523
Northern State Prison
P.O. Box 2300
Newark, NJ 07114
Plaintiff Pro se

HILLMAN, District Judge
Plaintiff Lawrence Massaro, a prisoner confined at Northern
State Prison in Newark, 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.
Plaintiff previously filed two applications to proceed in forma
pauperis, the first of which was denied in an Order dated
November 26, 2013. (ECF No. 3).
The Court’s November 26, 2013 Opinion (ECF No. 2) explained
the requirements for prisoners wishing to proceed in forma
pauperis. See 28 U.S.C. § 1915.

In relevant part, Plaintiff was

informed that he must submit a prison trust account statement

certified by a prison official. 28 U.S.C. § 1915(a)(2).
Plaintiff was further instructed that, “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.” (Mem. Op. 5, Nov. 26, 2013, ECF. No. 2).
On January 13, 2014, Plaintiff submitted another in forma
pauperis application (ECF No. 5), which included a lengthier
prisoner account statement than the one previously supplied.
However, the account statement was not certified by a prison
official.

Plaintiff explained that he attempted to obtain a

signature from a prison official, but that he “was advised that
no prison official or employee would sign the form because to do
so is against institutional policy.” (Pl.’s Appl. 22, ECF. No.
5).

Plaintiff asked the Court to accept his letter and the

accompanying paperwork as the truth in this matter and to grant
him in forma pauperis status.
In an Order dated April 21, 2015 (ECF No. 12), this Court
again explained to Plaintiff that he failed to submit a complete
in forma pauperis application, as required by 28 U.S.C. §
1915(a)(1), (2), because the trust account statement was not

certified by an appropriate prison official.

This Court further

explained that, although Plaintiff certified that prison
officials had refused his request for certification of the trust
account, Plaintiff failed to provide any details regarding the
circumstances of said request, including dates or names of the
individuals involved, as required by the Court’s November 26,
2013 Order.

Accordingly, his application to proceed in forma

pauperis was denied.
On June 1, 2015, the Court received yet another in forma
pauperis application from Plaintiff. (ECF No. 13).

Again, the

attached prison trust account statement is not certified by a
prison official and no explanation is provided for the absence
of a certification.

Therefore, Plaintiff’s application will

again be denied. See, e.g., Hairston, Sr. v. Gronolsky, 348 F.
App’x 716 (3d Cir. 2009) (affirming administrative termination
of prisoner civil rights action for failure to comply with
requirements of § 1915); Tyson v. Youth Ventures, L.L.C., 42 F.
App’x 221 (10th Cir. 2002) (affirming dismissal without
prejudice of civil action where prisoner submitted only
uncertified copy of institutional account statement); Johnson v.
United States, 79 Fed.Cl. 769 (2007) (same). See also Rohn v.
Johnston, 415 F. App’x 353, 354-55 (3d Cir. 2011) (affirming
dismissal without prejudice of civil action where prisoner
failed to submit the required affidavit of poverty).

Plaintiff is again reminded that 28 U.S.C. § 1915
establishes certain financial requirements for prisoners who are
attempting to bring a civil action in forma pauperis.

Under §

1915, 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. 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, § 1915
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).
Plaintiff is also again reminded that, to the extent he
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.
The allegations of the Complaint do not suggest that
Plaintiff is in imminent danger of serious physical injury. See
28 U.S.C. § 1915(g).
CONCLUSION
For the reasons set forth above, the Clerk of the Court will
be ordered to administratively terminate this action, without
filing the Complaint or assessing a filing fee. 1

Plaintiff will

be granted leave to apply to re-open within 30 days.

An

appropriate Order will be entered.

__s/ Noel L. Hillman______
NOEL L. HILLMAN
United States District Judge

Dated: June 8, 2015
At Camden, New Jersey

1

Such an administrative termination is not a “dismissal” 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 submitted timely. See Houston v. Lack, 487 U.S. 266
(1988) (prisoner mailbox rule); Papotto v. Hartford Life & Acc.
Ins. Co., 731 F.3d 265, 275-76 (3d Cir. 2013) (collecting cases
and explaining that a District Court retains jurisdiction over,
and can re-open, administratively closed cases).