NERI v. NJ DOC

Filing 4

OPINION. Signed by Judge Robert B. Kugler on 11/17/15. (jbk, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
PHILIP NERI,
:
:
Civ. No. 15-7837 (RBK)
Petitioner,
:
:
v.
:
OPINION
:
NJ DOC,
:
:
Respondent.
:
___________________________________ :
ROBERT B. KUGLER, U.S.D.J.
Petitioner is a former state prison inmate who was previously incarcerated at the Central
Reception and Assignment Facility.1 He is proceeding pro se with a petition for writ of
mandamus. The filing fee for the petition for writ of mandamus is $400.00 ($350.00 filing fee
plus $50.00 administrative fee). If a petitioner is proceeding in forma pauperis, the fee is
$350.00, subject to being paid in instalments as described below.
A prisoner who seeks to bring 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 applicable
filing fee. See 28 U.S.C. § 1915(a)(1). The prisoner must also submit a certified copy of his
inmate trust fund account statement for the six-month period immediately preceding the filing of
his complaint. See id. § 1915(a)(2). The prisoner must obtain this statement from the appropriate
official of each prison at which he was or is confined. See id.; see also L.Civ.R. 81.2(b)
(“Whenever a Federal, State, or local prisoner submits a civil rights complaint . . . the prisoner

1

Petitioner was incarcerated at the time he submitted his petition for filing as it is dated October
4, 2015. Nevertheless, a review of the New Jersey Department of Corrections inmate locater
indicates that petitioner was released on October 20, 2015. See
https://www20.state.nj.us/DOC_Inmate/details?x=1421092&n=0 (last visited on November 16,
2015). Petitioner has not provided the Court with his updated address.

shall also submit an affidavit setting forth information which establishes that the prisoner is
unable to pay the fees and costs of the proceedings and shall further submit 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 prisoner’s prison account
during the six-month period prior to the date of the certification.”).
Even if a prisoner is granted in forma pauperis status, he must pay the full amount of the
filing fee of $350.00. See 28 U.S.C. § 1915(b)(1). In each month that the amount in the
prisoner’s account exceeds $10.00, 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. See id. § 1915(b)(2). The
deductions will continue until the $350.00 filing fee is paid.
Even if the necessary fees are paid and the petition is accepted for filing, the Court may
nevertheless immediately dismiss the case. The Court must review the petition and dismiss it if it
finds that the action is: (1) 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. See id. § 1915(e)(2)(B); see also id. § 1915A(b).
If the plaintiff 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. See
id. § 1915(g).
In this case, plaintiff has not paid the $400.00 filing fee nor has he submitted an
application to proceed in forma pauperis. Therefore, the Clerk will be ordered to

2

administratively close the case. Plaintiff may reopen this action, however, by either paying the
filing fee or submitting a complete in forma pauperis application.

DATED: November 17, 2015
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

3