BERRYMAN v. WARDEN KIRBY
OPINION. Signed by Judge Noel L. Hillman on 4/19/2016. (rtm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MICHAEL DAVID BERRYMAN,
Civ. No. 16-2076 (NLH)
Michael David Berryman, # 64649-051
P.O. Box 420
Fairton, NJ 08320
Petitioner Pro se
HILLMAN, District Judge
Petitioner Michael David Berryman, a prisoner confined at
the Federal Correctional Institution in Fairton, New Jersey,
filed this writ of habeas corpus under 28 U.S.C. § 2241,
challenging the adequacy of his medical care. (ECF No. 1).
Petitioner failed to pay the filing fee or submit a complete in
forma pauperis application pursuant to Local Civil Rule 81.2(b).
The filing fee for a petition for writ of habeas corpus is
Pursuant to Local Civil Rule 54.3(a), the filing fee is
required to be paid at the time the petition is presented for
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
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).
Petitioner did not prepay the $5.00 filing fee for a habeas
petition as required by Local Civil Rule 54.3(a), nor did
Petitioner submit an application for leave to proceed in forma
pauperis as required by Local Civil Rule 81.2(b).
Accordingly, this matter will be administratively
terminated for failure to satisfy the filing fee requirement.
Petitioner will be granted leave to apply to reopen by either
paying the filing fee or submitting a complete application for
leave to proceed in forma pauperis.
To the extent Petitioner asserts that institutional
officials have refused to provide the certified account
statement, any such assertion must be supported by an affidavit
detailing the circumstances of Petitioner's request for a
certified account statement and the institutional officials’
refusal to comply, including the dates of such events and the
names of the individuals involved.
The Court notes, however, that in the instant habeas
petition, Petitioner specifically alleges an “Eighth Amendment,
deliberate indifference to a serious medical need” claim and he
requests injunctive relief. (Pet. 8, 10 ECF No. 1).
is on notice that challenges to medical treatment are generally
characterized as challenges to conditions of confinement and,
accordingly, are properly brought in the context of a civil
complaint filed under Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388, 388, 91 S. Ct. 1999, 2001, 29
L. Ed. 2d 619 (1971). See also Bonadonna v. United States, 446
F. App’x 407 (3d Cir. 2011) (holding that district court
properly dismissed § 2241 petition where petitioner’s
allegations of deficient or different medical care did not
“spell speedier release,” and thus did not lie at the “core of
habeas corpus.”) (citations omitted); Leamer v. Fauver, 288 F.3d
532, 542 (3d Cir. 2002) (“[W]hen the challenge is to a condition
of confinement such that a finding in plaintiff’s favor would
not alter his sentence or undo his conviction, an action under §
1983 is appropriate.”); Johnson v. Zickefoose, No. 11-6754, 2012
WL 6691803, at *3 (D.N.J. Dec. 21, 2012).
Petitioner remains free to assert the claims raised in the
instant Petition in a properly filed civil rights complaint.
This Court makes no determination as to the merits or timeliness
of any such claims.
Further, Petitioner is on notice that a
civil action under Bivens carries with it a total filing fee in
the amount of $400 or, if a prisoner is granted in forma
pauperis status, a filing fee in the amount of $350.
For the reasons set forth above, the Clerk of the Court
will be ordered to administratively terminate this action
without prejudice. 1
Petitioner will be granted leave to apply to
re-open within 45 days, by either prepaying the filing fee or
submitting a complete application for leave to proceed in forma
An appropriate Order will be entered.
___s/ Noel L. Hillman_____
NOEL L. HILLMAN
United States District Judge
Dated: April 19, 2016
At Camden, New Jersey
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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