SMART v. MCLIVAINE
OPINION. Signed by Judge Robert B. Kugler on 8/1/2014. (nz, )n.m.
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SALAHUDDIN F. SMART,
D. MARGARET MCLIVAINE,
Civ. No. 14-4375 (RBK) (JS)
ROBERT B. KUGLER, U.S.D.J.
Plaintiff is currently incarcerated at the Jones Farm in West Trenton, New Jersey. He
brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. 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
LCiv.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
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 L.Civ.R. 81.2(b)
(“Whenever a Federal, State, or local prisoner submits a civil rights complaint . . . the prisoner
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
submitted an application to proceed in forma pauperis. This application is deficient in several
respects. First, the application does not even appear to be from plaintiff. Instead, the in forma
pauperis application is from Maurice Gooden. Plaintiff has given the Court no indication in this
action that he also goes by the name Maurice Gooden. Second, besides the application not
coming from plaintiff, it does not set forth plaintiff’s prior six-month prisoner account statement.
Indeed, the prisoner account attached for Maurice Gooden is dated January 14, 2012, or more
than two years prior to when plaintiff submitted the complaint in this case. Finally, a prisoner
submitted an application to proceed in forma pauperis must have his prisoner account statement
certified by the appropriate prison official. This certification is lacking on the application to
proceed in forma pauperis that plaintiff submits in this case.
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. §
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. 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 1, 2014
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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