VASQUEZ v. BATISTE et al

Filing 5

OPINION. Signed by Judge Robert B. Kugler on 8/5/2014. (nz, )n.m.

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
EDUARDO VASQUEZ,
:
:
Plaintiff,
:
:
v.
:
:
BATISTE, et al.
:
:
Defendants.
:
___________________________________ :

Civ. No. 14-4366 (RBK) (JS)
OPINION

ROBERT B. KUGLER, U.S.D.J.
Plaintiff is currently incarcerated at F.M.C. Butner in Butner, North Carolina. He brings
this pro se civil rights action pursuant to Bivens v. Six Unknown Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). The Clerk will not file a civil complaint unless the person
seeking relief pays the entire applicable filing fee in advance or the person applies for and is
granted in forma pauperis status pursuant to 28 U.S.C. § 1915. See L.Civ.R. 5.1(f). The filing
fee for a civil complaint is $400.00 ($350.00 if the plaintiff is proceeding in forma pauperis).
While the Clerk has received the complaint, the complaint has not been filed as Plaintiff has not
paid the filing fee nor has Plaintiff been granted in forma pauperis status.
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 applicable filing fee.
See 28 U.S.C. § 1915(a)(1). The prisoner must also submit a certified copy of his inmate trust
fund account statement for the six-month period immediately preceding the filing of his
complaint. See id. § 1915(a)(2). The prisoner must obtain this statement from the appropriate
official of each prison at which he was or is confined. See id.; see also Local Civil R. 81.2(b)
(“Whenever a Federal, State, or local prisoner submits a civil rights complaint . . . the prisoner

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shall also submit an affidavit setting forth information which establishes that the prisoner is
unable to pay the fees and costs of the proceedings and shall further submit a certification signed
by an authorized officer of the institution certifying (1) the amount presently on deposit in the
prisoner’s prison account and, (2) the greatest amount on deposit in the prisoner’s prison account
during the six-month period prior to the date of the certification.”). In this case, plaintiff has not
submitted an application to proceed in forma pauperis. After plaintiff submitted his complaint,
he submitted a copy of his prisoner account statement. However, merely submitting a prisoner
account statement is not enough. As described above, petitioner also needs to submit an
affidavit, including a statement of all assets, illustrating that the prisoner is unable to pay the
filing fee. Furthermore, in any application to proceed in forma pauperis that plaintiff may elect
to file, the prisoner account statement must be certified by the appropriate prison official.
Accordingly, as of now, at a minimum, without any affidavit of poverty and certified statement
by the appropriate prison official, plaintiff fails to comply with the requirements necessary to be
granted in forma pauperis status.
Even if a prisoner is granted in forma pauperis status, he must pay the full amount of the
filing fee. See 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, payment
equal to 20 % of the preceding month’s income credited to the prisoner’s account. See id. §
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

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upon which relief may be granted; or (3) seeks monetary relief against a defendant who is
immune from such relief. See id. § 1915(e)(2)(B); see also id. § 1915A(b).
If the plaintiff has, on three or more prior occasions while incarcerated, brought an action
or appeal in a court that was dismissed 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
id. § 1915(g).
As plaintiff has neither pre-paid the filing fee nor submitted a complete application to
proceed in forma pauperis, the Clerk will be ordered to administratively close the case.
However, plaintiff shall be given an opportunity reopen this action by either paying the filing fee
or submitting a complete in forma pauperis application.

DATED: August 5, 2014
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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