MAYFIELD v. UNITED STATES et al

Filing 7

MEMORANDUM & ORDER: ORDER that Plaintiff's application to proceed in forma pauperis is hereby DENIED; Clerk of the Court shall administratively terminate this case. Signed by Judge Joseph H. Rodriguez on 3/26/2015. (tf,n.m. )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Terrence D. Mayfield,
Plaintiff,
v.
United States et al.
Defendants.

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Civil Action No. 13-7671(JHR)

MEMORANDUM AND ORDER

Plaintiff, a prisoner at CI Taft, in Taft, California seeks
to

bring

a

civil

action

in

forma

pauperis, 1

asserting

constitutional claims and state law claims against the United
States, the Acting U.S. Attorney and Assistant U.S. Attorney who
prosecuted his criminal case.

(Compl., Doc. No. 1.)

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).

1

The prisoner also must submit a certified

Suits brought in forma pauperis are governed by 28 U.S.C. § 1915.

copy of his inmate trust fund account statement for the 6-month
period immediately preceding the filing of his complaint.
U.S.C. § 1915(a)(2).

28

The prisoner must obtain this statement from

the appropriate official of each prison at which he was or is
confined.
Even

Id.
if

the

prisoner

pauperis,

the

prisoner must pay the full amount of the $350 filing fee.

28

U.S.C. § 1915(b)(1).

is

granted

in

forma

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, by
deducting from the prisoner’s account, and forwarding 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 refund
of the filing fee to the prisoner. 2

2

If Plaintiff chooses to go forward with this case by submitting
a properly completed IFP application, he may wish to submit an
2

If the prisoner has, on three or more prior occasions while
incarcerated, brought an action or appeal that was dismissed by
the court on any of the grounds listed above, 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).

In this case, Plaintiff failed to submit a completed in forma
pauperis application as required by 28 U.S.C. § 1915(a)(1), (2).
Plaintiff

failed

to

submit

a

certified

six-month

account

statement, pursuant to 28 U.S.C. § 1915(a)(2). 3
THEREFORE, it is on this 26th day of March, 2015;
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; Plaintiff is informed that administrative termination
is not a “dismissal” for purposes of the statute of limitations,
and that if the case is reopened, it is not subject to the statute
of limitations time bar if it was originally filed timely, see

amended complaint to avoid dismissal upon the Court’s preliminary
screening of the complaint for the factors in listed in 28 U.S.C.
1915(e)(2)(B). Furthermore, if Plaintiff does not state a viable
claim arising under federal law, the court can decline to exercise
supplemental jurisdiction over any state law claim. See 28 U.S.C.
§ 1367(c)(3).
3 Until such time as the Plaintiff submits a properly completed
IFP application, pays the partial filing fee, and the court screens
the complaint, and orders the defendants to answer, Defendants are
not in default. See 28 U.S.C. § 1915(c),(d).
3

Houston v. Lack, 487 U.S. 266 (1988)(prisoner mailbox rule);
McDowell v. Delaware State Police, 88 F.3d 188, 191 (3d Cir. 1996);
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, M.L. King, Jr. Federal Bldg. & U.S. Courthouse, 50 Walnut
Street, Newark, New Jersey, 07102, 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, or (2) the $400 fee
($350 filing fee, plus $50.00 administrative 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, and amended complaint if
Plaintiff chooses to amend, within the time allotted by this Court,
the Clerk of Court will be directed to reopen this case; and it is
finally
ORDERED that the Clerk of the Court shall serve a copy of
this Order upon Plaintiff by regular U.S. mail, together with a
blank form “Prisoner Applying To Proceed In Forma Pauperis In A
Civil

Rights

Case”

and

a

blank

Complaint.”

4

form

“Prisoner

Civil

Rights

s/ Joseph H. Rodriguez
Joseph H. Rodriguez
United States District Judge

5