LOUIS v. NEW JERSEY STATE PAROLE BOARD et al

Filing 13

OPINION. Signed by Judge Noel L. Hillman on 11/09/2015. (jbk, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
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Plaintiff,
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v.
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NEW JERSEY STATE PAROLE
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BOARD, et al.,
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Defendants.
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___________________________________:
ALBERT V. LOUIS, JR.,

Civ. No. 15-7004 (NLH)
OPINION

APPEARANCES:
Albert V. Louis, Jr., # 200841 159226B
South Woods State Prison
215 Burlington Road South
Bridgeton, NJ 08302
Plaintiff Pro se

HILLMAN, District Judge
Plaintiff Albert V. Louis, Jr., a prisoner confined at
South Woods State Prison in Bridgeton, New Jersey, filed this
civil action asserting claims pursuant to 42 U.S.C. § 1983.

The

case was previously administratively terminated due to
Plaintiff’s failure to satisfy the filing fee requirement. (ECF
No. 5).

This Court is in receipt of a second application to

proceed in forma pauperis (ECF No. 9) as well as a series of
letters from Plaintiff (ECF Nos. 6-8, 10, 11).

Accordingly, the

case was reopened for review by a judicial officer.

I.

In Forma Pauperis Application

As explained to Plaintiff in the Court’s October 7, 2015
Order, 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
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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
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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).
The Court notes that the institutional account statement
submitted by Plaintiff has not been certified by an appropriate
official and, therefore, is incomplete pursuant to 28 U.S.C. §
1915(a)(1), (2). 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.
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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).
In the numerous letters submitted by Plaintiff, he asserts
that he requested several times that the social worker at South
Woods State Prison, Ms. Adams, sign the account statement, but
she refused. See, e.g., (Letter 1, Oct. 28, 2015, ECF No. 8).
Plaintiff provides documentation which indicates the date and
time that he met with Ms. Adams and he asks the Court that he
not be penalized for her failure to sign the account statement.
(Letter 1, Oct. 29, 2015, ECF No. 11).
The Court commends Plaintiff for his efforts and does not
intend to penalize him for Ms. Adams’ refusal to provide her
signature.

However, Ms. Adams, who Plaintiff describes as a

social worker, is not a prison official who can provide
certification of Plaintiff’s prison trust account.

Rather, said

certification must come from a correctional officer, preferably
the officer who provided Plaintiff with the prison trust account
statement in the first place.
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’
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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).

As discussed in the Court’s previous

Order, the Court notes that Plaintiff states in his Complaint
that he is “faced with imminent danger of serious physical
injury every second of every day.” (Compl. 7, ECF No. 1).
However, Plaintiff does not provide any indication of what
specific danger he is facing.

Without further information

regarding the circumstances of his incarceration or the alleged
danger Plaintiff faces, this Court will not infer imminent
danger.
For the foregoing reasons, the Court finds that Plaintiff’s
application is incomplete and his request to proceed in forma
pauperis will be DENIED.

Plaintiff will not be assessed a

filing fee of $350.
II.

Petition for Writ of Habeas Corpus

In his Complaint, Plaintiff alleges that he should have
already been released from prison and that the State Parole
Board improperly imposed a Future Eligibility Term (“FET”) of
180 months, which will exceed Plaintiff’s maximum release date.
In terms of relief, Plaintiff seeks both immediate release and
financial compensation.
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The Court makes no determination as to the merits of
Plaintiff’s claims at this time.

However, to the extent that

Plaintiff challenges the calculation of his sentence or the
decision of the State Parole Board, the Court notes that claims
of this type are often properly raised in the context of habeas
corpus. See Williams v. Consovoy, 453 F.3d 173, 177 (3d Cir.
2006) (“It is well-settled that when a state prisoner is
challenging the fact or duration of his confinement, his sole
federal remedy is a writ of habeas corpus, not a § 1983
action.”) (citation omitted); Ford v. D'Amico, No. 05-5050, 2006
WL 1457938, at *6 (D.N.J. May 22, 2006) (collecting cases)
(holding that because Ford was actually contesting the decision
denying parole for the duration of his maximum prison sentence
and the determination of his release date, such a claim must be
raised by way of a habeas corpus petition after exhaustion of
state remedies); see also Hunterson v. DiSabato, 308 F.3d 236,
246 (3d Cir. 2002) (analyzing denial of parole and imposition of
FET in context of habeas corpus); Pratola v. Sullivan, No. 082417, 2010 WL 234937, at *2 (D.N.J. Jan. 14, 2010) (same);
Richardson v. New Jersey, No. 07-3482, 2007 WL 2317090, at *2
(D.N.J. Aug. 9, 2007) (“To the extent Plaintiff challenges the
constitutionality of his present confinement and seeks release
from confinement, the appropriate form of action is a petition

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for writ of habeas corpus, pursuant to 28 U.S.C. § 2254,
following exhaustion of state remedies[.]”).
This Court further notes that in Exhibit “(A-1)B” of the
Complaint, which is a letter from Plaintiff to the State Parole
Board, Plaintiff describes his challenge to the parole board’s
decision as a “motion for habeas corpus.” (Compl. 9, ECF No. 1).
Therefore, it is unclear under which statute, 42 U.S.C. § 1983
or 28 U.S.C. § 2254, Plaintiff means to bring this civil action.
In the event Plaintiff wishes to resubmit his claims in a
petition for writ of habeas corpus under 28 U.S.C. § 2254, the
Court will direct the Clerk of the Court to provide Plaintiff
with a blank form for a petition under 28 U.S.C. § 2254. (AO 241
(modified): DNJ-Habeas-008 (Rev.01-2014): “Petition for Relief
From a Conviction or Sentence By a Person in State Custody”).
Additionally, Plaintiff is informed that the filing fee for
a petition for writ of habeas corpus is $5.

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.
In the event Plaintiff seeks to submit a petition for writ
of habeas corpus and to proceed in forma pauperis, the Court
will direct the Clerk of the Court to supply Plaintiff with a
blank form “Affidavit of Poverty and Certification (Habeas
Corpus) (DNJ-Pro Se-007-B) (Rev. 09/09),” to be used in any
future application to proceed in forma pauperis in a habeas
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corpus proceeding.

Plaintiff is on notice that, 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.
81.2(c).
III. 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.
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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be granted leave to apply to re-open within 45 days.

An

appropriate Order will be entered.
___s/ Noel L. Hillman_____
NOEL L. HILLMAN
United States District Judge
Dated: November 9, 2015
At Camden, New Jersey

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