BANKS v. CENTRAL INTELLIGENCE AGENCY et al
OPINION. Signed by Judge Noel L. Hillman on 6/8/2015. (bdk, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CENTRAL INTELLIGENCE AGENCY,
Civ. No. 14-4569 (NLH)
Frederick Banks, # 05711-068
Northeast Ohio Correctional Center
2240 Hubbard Road
Youngstown, Ohio 44505
Plaintiff Pro se
HILLMAN, District Judge
On or about July 14, 2014, Petitioner Frederick Banks, a
prisoner confined at Northeast Ohio Correctional Center in
Youngstown, Ohio, filed a Petition for writ of habeas corpus,
pursuant to 28 U.S.C. § 2241, challenging the constitutionality
of his confinement. (ECF No. 1).
On July 28, 2014, the Petition
was administratively terminated for failure to pay the required
filing fee or submit a complete in forma pauperis application.
(ECF No. 2, 3).
On or about August 4, 2014, Petitioner
submitted an Amended Complaint and Petition. (ECF No. 4).
IN FORMA PAUPERIS APPLICATION
The Amended Petition includes a section titled “Motion to
Proceed In Forma Pauperis.” (Am. Pet. 9, ECF No. 4).
the submission fails to cure the deficiencies noted in the
Court’s July 28, 2014 Order.
Significantly, Petitioner failed
to utilize the blank form “Affidavit of Poverty and
Certification (Habeas Corpus) (DNJ-Pro Se-007-B) (Rev. 09/09),”
which the Court previously provided to him for use in any future
application to proceed in forma pauperis.
Petitioner is again informed that the filing fee for a
petition for writ of habeas corpus is $5.00.
Pursuant to Local
Civil Rule 54.3(a), the filing fee is required to be paid at the
time the petition is presented for filing.
Pursuant to Local
Civil Rule 81.2(b), whenever a prisoner submits a petition for
writ of habeas and seeks to proceed in forma pauperis, that
petitioner must submit (a) an affidavit setting forth
information which establishes that the petitioner is unable to
pay the fees and costs of the proceedings, and (b) 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
prisoners institutional account during the six-month period
prior to the date of the certification.
If the institutional
account of the petitioner exceeds $200, the petitioner shall not
be considered eligible to proceed in forma pauperis. L. CIV. R.
In this case, Petitioner did not prepay the $5.00 filing
fee for a habeas petition as required by Local Civil Rule
54.3(a), nor did Petitioner submit a complete application for
leave to proceed in forma pauperis.
did not submit an institutional account statement for a sixmonth period, certified by an authorized officer of the
institution. L. CIV. R. 81.2(b).
Accordingly, this matter will
be administratively terminated for failure to satisfy the filing
fee requirement. Petitioner will be granted leave to apply to
reopen by either paying the filing fee or submitting a complete
application for leave to proceed in forma pauperis.
To the extent Petitioner asserts that institutional
officials have refused to provide the certified account
statement, any such assertion must be supported by an affidavit
detailing the circumstances of Petitioner's request for a
certified account statement and the institutional officials'
refusal to comply, including the dates of such events and the
names of the individuals involved.
The Court notes that Petitioner has listed two other
individuals as co-filing the Amended Petition: Spence Taylor and
Without making any findings, the Court takes this
opportunity to point out that Petitioner provides no information
which suggests that he has standing to bring a petition on
behalf of these individuals.
A person seeking to invoke
jurisdiction of federal court must establish requisite standing
to sue before federal court can consider merits of legal claim.
Whitmore v. Arkansas, 495 U.S. 149, 110 S. Ct. 1717, 109 L. Ed.
2d 135 (1990).
In this case, Petitioner must clearly and
specifically set forth facts sufficient to satisfy the Article
III standing requirements with respect to the other two named
petitioners. See id.
In the alternative, Petitioner must establish that he can
act on Spence Taylor or John Doe’s behalf pursuant to the “next
friend” doctrine. See Whitmore, 495 U.S. at 163, 110 S. Ct. at
1727 (setting forth prerequisites for “next friend” standing).
Significantly, however, a “next friend” does not himself become
a party to the habeas corpus action in which he participates,
but simply pursues the cause on behalf of the detained person,
who remains the real party in interest. See id.
Petitioner has expressed a desire to bring this litigation in
his name to address his personal grievances.
only might application of the “next friend” doctrine be
inappropriate due to Petitioner’s failure to establish the
propriety of his status, see id., but it also appears to be
inconsistent with Petitioner’s intent in filing the Amended
To the extent Petitioner wishes to file a habeas petition
on behalf of another individual, he must first establish
Also, a separate petition must be filed for each
Additionally, Petitioner is on notice that for each
petition filed, the filing fee requirement must be satisfied.
Should a petitioner seek leave to proceed in forma pauperis,
each individual petitioner must submit a separate in forma
Without making any finding, the Court notes that it is
unclear whether this Court would have jurisdiction over the
Petitioner was sentenced in the Western
District of Pennsylvania and, although he was previously
incarcerated at the Federal Correctional Institution in Fort
Dix, New Jersey, he has since been relocated to the Northeast
Ohio Correctional Center in Youngstown, Ohio.
It is therefore
unclear how, and if, jurisdiction is proper with this Court.
C. 42 U.S.C. § 1983
Finally, the Court notes that Plaintiff seeks monetary
damages as well as injunctive and declaratory relief.
making any determinations as to the merits of the Amended
Petition, the Court notes that some of Petitioner’s claims
appear to sound more appropriately in an action under 42 U.S.C.
§ 1983 rather than in a petition for a writ of habeas corpus.
If, upon further review of his allegations and requested
relief, Petitioner feels that his claims would be properly
brought in an action under § 1983, he is free to file such an
Plaintiff is on notice, however, that the filing fee
for a civil action is $400 and that the prerequisites for in
forma pauperis status in an action under § 1983 are different
than those in a habeas case.
Forms are available on the Court’s
website. See http://www.njd.uscourts.gov/.
For the reasons set forth above, the Clerk of the Court will
be ordered to administratively terminate this action without
Petitioner will be granted leave to apply to re-open
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.
within 30 days, by either prepaying the filing fee or submitting
a complete application for leave to proceed in forma pauperis.
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
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).
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