TARIN v. UNITED STATES OF AMERICA

Filing 6

OPINION. Signed by Judge Noel L. Hillman on 12/4/2015. (bdk, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
ALEJANDRO A. TARIN,
:
:
Plaintiff,
:
Civ. No. 15-6358 (NLH)
:
v.
:
OPINION
:
UNITED STATES OF AMERICA,
:
:
Defendant.
:
___________________________________:
APPEARANCES:
Alejandro A. Tarin, #15752-047
FCI Fairton
P.O. Box 420
Fairton, NJ 08320
Plaintiff Pro se
HILLMAN, District Judge
This matter is before the Court upon receipt of an
application for leave to proceed in forma pauperis pursuant to
28 U.S.C. § 1915(a) filed by Plaintiff Alejandro A. Tarin. (ECF
No. 4).

Plaintiff, a prisoner confined at the Federal

Correctional Institution in Fairton, New Jersey, filed this
civil action asserting claims pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq. (ECF No.
1).

This case was previously administratively terminated due to

Plaintiff’s failure to satisfy the filing fee requirement. (ECF
No. 3).
On or about October 9, 2015, Plaintiff filed an application
to proceed in forma pauperis (ECF No. 4) and the case was

reopened for review by a judicial officer.

A review of this

submission reveals that Plaintiff has filed a complete
application which includes a certified prison trust account
statement.

However, Plaintiff’s application also establishes

that he is not indigent and, thus, he is not eligible for in
forma pauperis status.
According to Plaintiff’s prisoner trust account, as of
October 5, 2015, Plaintiff had over $1,038.28 as his available
balance. (In Forma Pauperis Application 5, ECF No. 4).
Moreover, his Average Daily Balance for the previous 30 days was
$1,033.85 and his National 6 Months Average Daily Balance is
listed as $2,998.69. (Id.).

Plaintiff also has deposited more

than $2,500 in the past 6 months and has withdrawn nearly $6,000
in the same time period. (Id.).

Finally, Plaintiff does not

allege that he has any expenses or significant financial
obligations.
The in forma pauperis statute “is designed to ensure that
indigent litigants have meaningful access to the federal
courts.” Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827,
104 L.Ed.2d 338 (1989); see also Deutsch v. United States, 67
F.3d 1080, 1084 n.5 (3d Cir. 1995).

The Third Circuit has

determined that leave to proceed in forma pauperis is based on
showing of indigence. See Deutsch, 67 F.3d at 1084 n.5.

A court

must first review an applicant’s financial statement, and, if
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convinced that he or she is unable to pay court costs and filing
fees, the court will grant leave to proceed in forma pauperis.
Id.

However, “[u]nder the [Prison Litigation Reform Act] PLRA,

a prisoner who files a civil complaint or an appeal in the
federal courts is required to pay the full amount of the filing
fee even if s/he is filing in forma pauperis (‘IFP’).” Siluk v.
Merwin, 783 F.3d 421, 423 (3d Cir. 2015), as amended (Apr. 21,
2015), as amended (Apr. 28, 2015); Id. at 424-25 (explaining
statutory background of 28 U.S.C. § 1915); see also 28 U.S.C. §
1915(b); Hagan v. Rogers, 570 F.3d 146 (3d Cir. 2009) (holding
that the requirement for each prisoner to pay a full fee is
simply one price that a prisoner must pay for in forma pauperis
status under the PLRA).
The Supreme Court has clarified that one need not be
absolutely destitute to qualify for in forma pauperis status.
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 69 S. Ct.
85, 93 L. Ed. 43 (1948).

Rather, under Adkins, it is sufficient

for an applicant to certify that he cannot pay the fee and still
be able to provide himself and his dependents with the
necessities of life. Id.
In this case, however, Plaintiff is an inmate confined at
the Federal Correctional Institution in Fairton, New Jersey.
Thus, the majority of his “necessities of life” — including
housing, food, clothing, and medications — are provided by
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prison authorities.

In addition, Plaintiff does not indicate

that he has any significant financial obligations, and his
prisoner trust account reflects a spending balance in excess of
$1,000, with significant withdrawals and deposits having been
made in the past 6 months.

Thus, the Court is not convinced

that Plaintiff is unable to pay the court costs and filing fees.
See Adkins, 335 U.S. 331; Deutsch, 67 F.3d 1080.
Accordingly, his application to proceed in forma pauperis
is denied. See e.g., Carter v. United States, No. 14-4741, 2014
WL 4388607, at *1 (D.N.J. Sept. 5, 2014) (determining that
prepayment of the filing fee for a civil action would not be too
burdensome for prisoner plaintiff within the meaning of the
Adkins test); Capalbo v. Hollingsworth, No. 13-3291, 2013 WL
6734315, at *2 (D.N.J. Dec. 19, 2013) (denying in forma pauperis
status because “it does not appear that [prisoner applicant’s]
minimal needs would be left unsatisfied unless he utilizes his
funds.”); cf. Matthews v. Suggs, 382 F. App'x 125 (3d Cir. 2010)
(finding abuse of discretion where district court determined
that plaintiff had sufficient funds in his prison account to pay
the fee, but failed to take into account plaintiff’s other
financial obligations).

However, out of an abundance of

caution, this denial will be without prejudice.

Plaintiff may

renew his request to proceed in forma pauperis by submitting a

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revised application which demonstrates that he is indigent
within the standard articulated in Adkins.
Finally, the Court notes that Plaintiff has written the
words, “Accepted for Value and Honor – Exempt from Levy” across
the first two pages of his in forma pauperis application. (In
Forma Pauperis Application 1-2, ECF No. 4).

Plaintiff has also

written across the signature page and states, “For my remedy,
release the proceeds, products, accounts, and fixtures in the
Orders(s) [sic] to me immediately in the [sic] accordance with
the public policy HUR-192, UCC # 10-104.” (Id. at 3).

Plaintiff

then provides an “Exemption No.” and a “UCC Contract Account
No.” (Id.).
The Court is uncertain what Plaintiff means to accomplish
by writing across the pages of his in forma pauperis application
and by providing this information.

As explained to Plaintiff in

the Court’s previous Order administratively terminating his
case, a prisoner who is granted in forma pauperis status will be
assessed a filing fee of $350.

To the extent Plaintiff asserts

that he will be “exempt from levy” of this fee if he is granted
in forma pauperis status, he is mistaken.
Plaintiff is hereby informed that, in the event he chooses
to resubmit an in forma pauperis application which establishes
his indigence under Adkins, then he may be granted in forma
pauperis status.

If he is granted in forma pauperis status,
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then he must pay the full amount of the $350 filing fee, in
installments. 28 U.S.C. § 1915(b)(1).

Specifically, 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 Plaintiff shall assess, deduct from Plaintiff’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
Plaintiff’s account. 28 U.S.C. § 1915(b)(2).
CONCLUSION
For the foregoing reasons, Plaintiff’s application to
proceed in forma pauperis is denied without prejudice.

Within

45 days, Plaintiff may renew his request to proceed in forma
pauperis by submitting a revised application which demonstrates
that he is indigent within the standard articulated in Adkins.
Plaintiff is on notice that if he is granted in forma pauperis
status, then he must pay the full amount of the $350 filing fee,
in installments as explained above. 28 U.S.C. § 1915(b)(1).

s/ Noel L. Hillman___
NOEL L. HILLMAN
United States District Judge
Dated: December 4, 2015
At Camden, New Jersey

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