COOPER v. COOK et al

Filing 2

MEMORANDUM and ORDER IFP is DENIED and Clerk shall administratively terminate this matter. ORDERED Clerk shall send Plaintiff a blank IFP and a copy of this Order. ORDERED Plaintiff has 30 days from the entry of this Order to reopen this matter. Signed by Chief Judge Jerome B. Simandle on 2/23/2015. (nz, )n.m.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

MORRIS M. COOPER,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 15-1293 (JBS)

v.
TERRENCE COOK, et al.,

MEMORANDUM AND ORDER
Defendants.

SIMANDLE, Chief Judge:
1.

Before the Court is Plaintiff Morris M. Cooper, a

prisoner confined at Atlantic County Justice Facility, seeking
to bring this civil action in forma pauperis, without prepayment
of fees or security, asserting claims pursuant to 42 U.S.C. §
1983.

The Prison Litigation Reform Act of 1995 (the “Act”),

which amends 28 U.S.C. § 1915, establishes certain financial
requirements for prisoners who are attempting to bring a civil
action in forma pauperis.
2.

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).

The prisoner also must submit

a certified copy of his inmate trust fund account statement for
the six-month period immediately preceding the filing of his
complaint.

28 U.S.C. § 1915(a)(2).

The prisoner must obtain

this statement from the appropriate official of each prison at
which he was or is confined.
3.

Id.

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.

If in forma pauperis status is

denied, the prisoner must pay the full $400, including the $350
filing fee and the $50 administrative fee, before the complaint
will be filed.
4.

If the prisoner is granted in forma pauperis status,

the prisoner must pay the full amount of the $350 filing fee 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, payment equal to 20% of the preceding
month’s income credited to the prisoner’s account.

28 U.S.C. §

1915(b)(2).
5.

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)
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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.
1915(e)(2)(B).

28 U.S.C. §

If the Court dismisses the case for any of these

reasons, the Act does not permit the prisoner to get his filing
fee back.
6.

If the prisoner 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.
7.

28 U.S.C. § 1915(g).

In this action, Plaintiff failed to submit a complete

in forma pauperis application as required by 28 U.S.C. §
1915(a)(1), (2). Plaintiff did not sign the affidavit, and his
account statement is not compliant with the requirements of the
Act as it does not cover the six-month period immediately
preceding the filing of this complaint.
THEREFORE, it is on this

23rd

day of

February , 2015;

ORDERED that Plaintiff’s request 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
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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 Jenkins v. Superintendent of Laurel Highlands,
705 F.3d 80, 84 n.2 (2013) (describing prisoner mailbox rule
generally); Dasilva v. Sheriff's Dept., 413 Fed.Appx. 498, 502
(3rd Cir. 2011) (“[The] statute of limitations is met when a
complaint is submitted to the clerk before the statute runs
….”); and it is further
ORDERED that the Clerk of the Court shall send Plaintiff a
blank form application to proceed in forma pauperis; 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, Mitchell H. Cohen Building and U.S. Courthouse,
Fourth and Cooper Streets, Camden, New Jersey, 08101, 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 current certified six-month prison
account statement, or (2) the $400 fee including the $350 filing
fee plus the $50 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 payment of the filing
and administrative fees within the time allotted by this Court,
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the Clerk of the 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.

February 23, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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