CALLAWAY v. CUMBERLAND COUNTY SHERIFF DEPARTMENT et al

Filing 6

OPINION. Signed by Judge Noel L. Hillman on 5/15/2015. (drw) n.m.

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
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Plaintiff,
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v.
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CUMBERLAND COUNTY SHERIFF
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DEPARTMENT, et al.,
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Defendants.
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___________________________________:
OREADER CALLAWAY,

Civ. No. 14-4853 (NLH)
OPINION

APPEARANCES:
Oreader Callaway, #934609/109763-B
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
Plaintiff Pro se

HILLMAN, District Judge
Plaintiff Oreader Callaway, a prisoner presently confined
at the New Jersey State Prison in Trenton, New Jersey, seeks to
bring this civil action in forma pauperis, without prepayment of
fees or security, asserting claims pursuant to 42 U.S.C. § 1983.
This case was previously administratively terminated for failure
to submit a complete in forma pauperis application.

At that

time, Plaintiff was confined at the Cumberland County
Correctional Facility.
On August 21, 2014, Plaintiff submitted a Notification to
Reopen (ECF No. 4) which included a revised in forma pauperis

application.

Accordingly, the case was reopened on April 23,

2015 to consider Plaintiff’s most recent application.
Pursuant to Local Civil Rule 54.3, the Clerk shall not be
required to enter any suit, file any paper, issue any process,
or render any other service for which a fee is prescribed,
unless the fee is paid in advance.

Under certain circumstances,

however, this Court may permit an indigent plaintiff to proceed
in forma pauperis.
The entire fee to be paid in advance of filing a civil
complaint is $400. That fee includes a filing fee of $350 plus
an administrative fee of $50, for a total of $400.

A prisoner

who is granted in forma pauperis status will, instead, be
assessed a filing fee of $350 and will not be responsible for
the $50 administrative fee.

A prisoner who is denied in forma

pauperis status must pay the full $400, including the $350
filing fee and the $50 administrative fee, before the complaint
will be filed.
Title 28 U.S.C. § 1915, establishes certain financial
requirements for prisoners who are attempting to bring a civil
action in forma pauperis.

Under § 1915, a prisoner seeking to

bring a civil action in forma pauperis must submit an affidavit,
including a statement of all assets and liabilities, which
states that the prisoner is unable to pay the fee. 28 U.S.C. §
1915(a)(1).

The prisoner also must submit a certified copy of

his inmate trust fund account statement(s) for the six-month
period immediately preceding the filing of his complaint. 28
U.S.C. § 1915(a)(2).

The prisoner must obtain this certified

statement from the appropriate official of each correctional
facility at which he was or is confined during such six-month
period. Id.
If the prisoner is granted in forma pauperis status, the
prisoner must pay the full amount of the $350 filing fee, in
installments, as follows. 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 an installment 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: (1) is
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) (in forma pauperis actions); see also 28 U.S.C. §
1915A (dismissal of actions in which prisoner seeks redress from

a governmental defendant); 42 U.S.C. § 1997e (dismissal of
prisoner actions brought with respect to prison conditions).

If

the Court dismisses the case for any of these reasons, § 1915
does not suspend installment payments of the filing fee or
permit the prisoner to get back the filing fee, or any part of
it, that has already been paid.
If the prisoner has, on three or more prior occasions while
incarcerated, brought in federal court an action or appeal that
was dismissed on the grounds that it was frivolous or malicious,
or that it failed to state a claim upon which relief may be
granted, he cannot bring another action in forma pauperis unless
he is in imminent danger of serious physical injury. 28 U.S.C. §
1915(g).
For the second time, Plaintiff has failed to submit a
complete in forma pauperis application as required by 28 U.S.C.
§ 1915(a)(1), (2).

More specifically, he does not submit a

certified institutional account statement.

See, e.g., Hairston,

Sr. v. Gronolsky, 348 F. App’x 716 (3d Cir. 2009) (affirming
administrative termination of prisoner civil rights action for
failure to comply with requirements of § 1915); Tyson v. Youth
Ventures, L.L.C., 42 F. App’x 221 (10th Cir. 2002) (affirming
dismissal without prejudice of civil action where prisoner
submitted only uncertified copy of institutional account
statement); Johnson v. United States, 79 Fed.Cl. 769 (2007)

(same). See also Rohn v. Johnston, 415 F. App’x 353, 354-55 (3d
Cir. 2011) (affirming dismissal without prejudice of civil
action where prisoner failed to submit the required affidavit of
poverty).
Plaintiff submits a letter dated April 28, 2015 (ECF No. 5)
in which he states that he submitted “an account statement,
along with a Cumberland County Statement along with the reason
why no affidavit to support account statement was available,
because the one person who was able for varification [sic]
stated in September of 2013 that she was unable to provide [him]
with a statement[.]” (Letter from Pl. 2, Apr. 28, 2015, ECF No.
5).

The Court construes this language as an assertion that

Plaintiff attempted to have the account statement certified, but
was refused.
In its previous Order denying Plaintiff’s in forma pauperis
application, the Court stated:
[t]o the extent Plaintiff asserts that correctional
officials have refused to provide the certified
account statement, any such assertion must be
supported by an affidavit detailing the circumstances
of Plaintiff’s request for a certified institutional
account statement and the correctional officials’
refusal to comply, including the dates of such events
and the names of the individuals involved.
(Order 2, Aug. 7 2014, ECF No. 4).

In his current application,

Plaintiff merely alludes to the fact that his request for
certification of the account statement from officials at the

Cumberland County Correctional Facility was denied.

Contrary to

the instructions in the Court’s August 7, 2014 Order, Plaintiff
does not provide any details regarding the circumstances of his
request or of the refusal.

Accordingly, his in forma pauperis

application is incomplete and will be denied.
Plaintiff is again instructed that, to the extent Plaintiff
asserts that correctional officials have refused to provide the
certified account statement, any such assertion must be
supported by an affidavit detailing the circumstances of
Plaintiff’s request for a certified institutional account
statement and the correctional officials’ refusal to comply,
including the dates of such events and the names of the
individuals involved.
The allegations of the Complaint do not suggest that
Plaintiff is in imminent danger of serious physical injury. See
28 U.S.C. § 1915(g).
CONCLUSION
For the reasons set forth above, the Clerk of the Court will
be ordered to administratively terminate this action, without
filing the Complaint or assessing a filing fee. 1

1

Plaintiff will

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.

be granted leave to apply to re-open within 30 days.

An

appropriate Order will be entered.

___s/ Noel L. Hillman_____
NOEL L. HILLMAN
United States District Judge

Dated: May 15, 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).