LOUIS v. NEW JERSEY STATE PAROLE BOARD et al

Filing 19

OPINION. Signed by Judge Noel L. Hillman on 2/8/2016. (bdk, )

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 twice previously administratively terminated due to
Plaintiff’s failure to satisfy the filing fee requirement. (ECF
No. 5, 12).

This Court is in receipt of a third application to

proceed in forma pauperis (ECF No. 18) as well as a letter from
Plaintiff (ECF No. 17).

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
Opinion (ECF No. 4) and in the November 9, 2015 Opinion (ECF No.
13), 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. §
2

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. §
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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).
The Court notes that the institutional account statement
submitted by Plaintiff has not been certified by an appropriate
official.

There is a section specifically reserved for this

certification on page 3 of the in forma pauperis application
and, in Plaintiff’s submission, it remains blank.

Therefore,

the application 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.
4

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 does not assert that correctional officials have
refused to provide the certified account statement.

To the

extent he believes he is being improperly denied the required
certification, 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).

As discussed in the Court’s previous

Orders, the Court again 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
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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

The Court notes that Plaintiff has filed a petition for
writ of habeas corpus under 28 U.S.C. § 2254, which is currently
pending before this Court. See Louis v. State of New Jersey, No.
15-6420 (NLH) (D.N.J. Aug. 25, 2015).

The relief he seeks and

the arguments he sets forth in the pending § 2254 petition are
similar in nature, if not identical, to the relief and the
arguments asserted in the instant Complaint pursuant to 28
U.S.C. § 1983.

In essence, Petitioner alleges in both actions

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.
The Court makes no determination as to the merits of
Plaintiff’s claims at this time.

However, as noted in the

Court’s previous Opinions, 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
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are often properly raised in the context of habeas corpus — an
action which Plaintiff has already properly filed before this
Court. 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
for writ of habeas corpus, pursuant to 28 U.S.C. § 2254,
following exhaustion of state remedies[.]”).
The Court previously stated that it was unclear under which
statute, 42 U.S.C. § 1983 or 28 U.S.C. § 2254, Plaintiff means
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to bring the instant civil action.

However, given the fact that

Plaintiff has filed a § 2254 petition, which is pending before
this Court, and he still is pursuing this § 1983 action, it
appears that Plaintiff wishes to maintain separate civil actions
under both statutes.

As explained above, Plaintiff is on notice

that if he is granted in forma pauperis status in this civil
action, he will be assessed a filing fee of $350.
III. CONCLUSION
For foregoing reasons, the Clerk of the Court will be
ordered to administratively terminate this action, without
filing the Complaint or assessing a filing fee. 1

Plaintiff will

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: February 8, 2016
At Camden, New Jersey

1

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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