BRAGG v. COHEN et al

Filing 10

OPINION. Signed by Judge Noel L. Hillman on 10/21/2015. (bdk, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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Plaintiff,
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v.
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GERALDINE COHEN, et al.,
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Defendant.
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___________________________________:
BRIAN KEITH BRAGG,

Civ. No. 15-7006 (NLH)
OPINION

APPEARANCES:
Brian Keith Bragg, #533330
Mercer County Correctional Center
P.O. Box 8068
Trenton, NJ 08650
Plaintiff Pro se

HILLMAN, District Judge
Plaintiff Brian Keith Bragg, a prisoner confined at the
Mercer County Correctional Center in Trenton, New Jersey, filed
this civil action asserting claims pursuant to 42 U.S.C. § 1983.
(ECF No. 1).

This case was previously administratively

terminated due to Plaintiff’s failure to pay the filing fee or
file a complete in forma pauperis application. (ECF No. 4).

On

or about October 14, 2015, Plaintiff submitted another in forma
pauperis and the case was reopened for review by a judicial
officer. (ECF No. 6).

Finally, on October 19, 2015, Plaintiff

filed a Motion to Amend his Complaint. (ECF No. 9).

As explained to Plaintiff in the Court’s previous 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

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

Of particular relevance to this case, the

statute mandates that 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).
In this action, Plaintiff failed to either pay the required
filing fee or to submit a complete in forma pauperis application
as required by 28 U.S.C. § 1915(a)(1), (2).

Specifically, he

has not submitted a certified copy of his inmate trust fund
account statement(s) for the six-month period immediately
preceding the filing of his complaint from each
correctional facility at which he was or is confined during such
six-month period. See 28 U.S.C. § 1915(a)(2); see also, 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
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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, 35455 (3d Cir. 2011) (affirming dismissal without prejudice of
civil action where prisoner failed to submit the required
affidavit of poverty).
Plaintiff states that he was transferred to the Atlantic
County Justice Facility on September 4, 2015. (Compl. 7, ECF No
.1).

Plaintiff attaches to his in forma pauperis application a

certified trust account from the Atlantic County Jail for the
period of time between September 1, 2015 to October 6, 2015. (In
Forma Pauperis App. 4, ECF No. 4).

However, Plaintiff indicates

in his application that he was previously incarcerated at Mercer
County Correctional Center beginning on July 27, 2015. (Id. at
2).

It is unclear if, and where, Plaintiff was incarcerated

prior to that date.

Regardless, it is evident from the in forma

pauperis application that Plaintiff has failed to provide a
certified copy of his inmate trust fund account statement(s) for
the six-month period immediately preceding the filing of his
complaint from each correctional facility at which he was or is
confined during such six-month period. See 28 U.S.C. §
1915(a)(2).
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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).

The Court again notes that, in his

Complaint, Plaintiff suggests that he is in need of mental
health treatment.

However, Plaintiff’s handwriting is clear,

his assertions are lucid, and he has demonstrated his ability to
comprehend statutes, court orders, and to file submissions on
the docket.
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’s

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
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Motion to Amend (ECF No. 9) will be DENIED as moot.

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
Date: October 21, 2015
At Camden, New Jersey

and explaining that a District Court retains jurisdiction over,
and can re-open, administratively closed cases).
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