MASSARO v. BALICKI et al
OPINION. Signed by Judge Noel L. Hillman on 3/28/2016. (dmr)(n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 13-6958 (NLH)
KAREN BALICKI, et al.,
Lawrence Massaro, # 578722/SBI 903523
Northern State Prison
P.O. Box 2300
Newark, NJ 07114
Plaintiff Pro se
HILLMAN, District Judge
This matter is before the Court upon receipt of an
application for leave to proceed in forma pauperis pursuant to
28 U.S.C. § 1915(a) filed by Plaintiff Lawrence Massaro. (ECF
Plaintiff, a prisoner confined at Northern State
Prison in Newark, New Jersey, filed this civil action pursuant
to 42 U.S.C. § 1983. (ECF No. 1).
Plaintiff previously filed
three in forma pauperis applications; each of which were denied
by this Court (ECF Nos. 3, 12, 15) and resulted in
administrative termination of the case.
On or about August 21, 2015, Plaintiff filed a fourth
application to proceed in forma pauperis (ECF No. 17) and the
case was reopened for review by a judicial officer.
A review of
this submission reveals that Plaintiff has filed a complete
application which includes a certified prison trust account
However, Plaintiff’s application also establishes
that he is not indigent and, thus, he is not eligible for in
forma pauperis status.
In his application, Plaintiff certifies that he receives
nearly $3,450 per month — $3,300 per month through his
employment at the prison and $150 per month in gifts or
inheritances. (In Forma Pauperis Application 2, ECF No. 17).
According to Plaintiff’s prisoner trust account, as of June 1,
2015, Plaintiff had over $1,200 designated as “spendable” funds.
(Id. at 4).
Further, Plaintiff does not allege that he has any
expenses or significant financial obligations.
The Third Circuit has determined that leave to proceed in
forma pauperis is based on showing of indigence. See Deutsch v.
United States, 67 F.3d 1080 (3d Cir. 1995).
A court must first
review an applicant’s financial statement, and, if convinced
that he or she is unable to pay court costs and filing fees, the
court will grant leave to proceed in forma pauperis. 1 Id.
The Court notes that § 1915(a) allows both prisoner and nonprisoner plaintiffs alike to commence a legal action without
prepayments fees and costs. See 28 U.S.C. § 1915(a). However,
in response to “a sharp rise in prisoner litigation,” Congress
enacted the Prison Litigation Reform Act, which requires
prisoners to pay the full amount of the filing fee in
installments. Bruce v. Samuels, 136 S. Ct. 627, 629, 193 L. Ed.
The Supreme Court has clarified that one need not be
absolutely destitute to qualify for in forma pauperis status.
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 69 S. Ct.
85, 93 L. Ed. 43 (1948).
Rather, under Adkins, it is sufficient
for an applicant to certify that he cannot pay the fee and still
be able to provide himself and his dependents with the
necessities of life. Id.
In this case, however, Plaintiff is an inmate confined at
the Northern State Prison in Newark, New Jersey.
majority of his “necessities of life” — including housing, food,
clothing, and medications — are provided by prison authorities.
In addition, Plaintiff certifies that he has approximately
$3,450 in income each month, with no significant financial
obligations, and his prisoner trust account reflects a spending
balance in excess of $1,200.
Thus, the Court is not convinced
that Plaintiff is unable to prepay the court costs and filing
fees. See Adkins, 335 U.S. 331; Deutsch, 67 F.3d 1080.
Accordingly, his application to proceed in forma pauperis
is denied. See e.g., Tarin v. Morales, No. 15-5943, 2015 WL
7871161, at *2 (D.N.J. Dec. 4, 2015) (collecting cases)
(determining that prepayment of the filing fee for a civil
action would not be too burdensome for plaintiff within the
2d 496 (2016) (citations omitted); 28 U.S.C. § 1915(b). Nonprisoner plaintiffs are under no such repayment obligation.
meaning of the Adkins test); cf. Matthews v. Suggs, 382 F. App'x
125 (3d Cir. 2010) (finding abuse of discretion where district
court determined that plaintiff had sufficient funds in his
prison account to pay the fee, but failed to take into account
plaintiff’s other financial obligations).
However, out of an
abundance of caution, this denial will be without prejudice.
Plaintiff may renew his request to proceed in forma pauperis by
submitting a revised application which demonstrates that he is
indigent within the standard articulated in Adkins.
For the foregoing reasons, Plaintiff’s request to proceed
in forma pauperis is DENIED WITHOUT PREJUDICE.
An appropriate Order will follow.
____s/ Noel L. Hillman____
NOEL L. HILLMAN
United States District Judge
Date: March 28, 2016
At Camden, New Jersey
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