KING v. UNITED STATES OF AMERICA et al

Filing 4

OPINION. Signed by Judge Noel L. Hillman on 2/28/2017. (rtm, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Petitioner,
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v.
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UNITED STATES OF AMERICA,
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Respondent.
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___________________________________:
ANDERSON KING,

Civ. No. 16-3868 (NLH)
OPINION

APPEARANCES:
Anderson King
95857004
Fort Dix
Federal Correctional Institution
Inmate Mail/Parcels
East: P.O. Box 2000
Fort Dix, NJ 08640
Petitioner Pro se
HILLMAN, District Judge
Petitioner Anderson King, an inmate confined at the Federal
Correctional Institution in Fort Dix, New Jersey at the time of
filing, has filed the instant Petition for a Writ of Mandamus
seeking to compel the Bureau of Prisons to utilize his legally
changed name, which he uses in the exercise of his religious
beliefs.

(ECF No. 1.)

Petitioner has submitted a $5 filing

fee, as well as an application to proceed in forma pauperis in a
habeas corpus case.

(ECF Nos. 2, 3.)

PLRA/Filing Fee
The entire fee to be paid in advance of filing a civil
complaint, including a petition for writ of mandamus, is $400.
Banks v. Langford, No. 16-4176, 2016 WL 3769351, at *1 (D.N.J.
July 14, 2016).

That fee includes a filing fee of $350 plus an

administrative fee of $50, for a total of $400.

Under certain

circumstances, however, this Court may permit an indigent party
to proceed in forma pauperis.
Civil actions brought in forma pauperis are governed by 28
U.S.C. § 1915 and, ordinarily, the Prison Litigation Reform Act
of 1995, Pub. L No. 104–135, 110 Stat. 1321 (April 26, 1996)
(the “PLRA”), which amends 28 U.S.C. § 1915, establishes certain
financial requirements for prisoners who are attempting to bring
a civil action or file an appeal in forma pauperis.
If the PLRA applies to this action, in order to proceed in
forma pauperis, Petitioner is required to submit an affidavit,
including a statement of all assets and liabilities, which
states that he is unable to pay the fee; as well as a certified
copy of his inmate trust fund account statement(s) for the sixmonth period immediately preceding the filing of his petition.
28 U.S.C. § 1915(a)(1), (2).

However, if the PLRA does not

apply to this action, Petitioner in this case need only file an
affidavit of poverty in support of his request for in forma
pauperis status. See Madden, 102 F.3d at 78 (“Where the PLRA
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applies, the petitioner must file an affidavit of poverty, a
six-month account statement, and a form authorizing prison
officials to withdraw money from his account; where it does not,
the petitioner need only file an affidavit of poverty.”).
This Court recently addressed the issue of whether the PLRA
applies to § 1361 mandamus petitions seeking relief analogous to
a civil complaint.

See Banks, 2016 WL 3769351, at *1 (citing

Madden v. Myers, 102 F.3d 74, 78 (3d Cir. 1996).

After

reviewing Third Circuit case law and other relevant decisions,
the Court concluded that the requirements of the PLRA apply to
actions such as this one, where the pending petition under §
1361 does not relate to a judge conducting a criminal trial and
it seeks relief analogous to a civil complaint, i.e. specific
action on the part of the named Respondents/Defendants.

Id.

The Court sees no reason to depart from its holding in Banks and
finds that the PLRA applies to the instant matter.

In Forma Pauperis Application
Petitioner has filed an in forma pauperis application.
However, said application is incomplete.

As discussed above,

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).
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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).
Petitioner may not have known 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 a governmental defendant); 42 U.S.C. § 1997e
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(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 matter, though Petitioner submitted an affidavit of
poverty and a six month account statement, that statement was
not certified by a prison official.

28 U.S.C. § 1915(a)(2).

CONCLUSION
For the reasons set forth above, Petitioner’s application
to proceed in forma pauperis will be denied without prejudice
and the Clerk of the Court will be ordered to administratively
terminate this action, without filing the Petition or assessing
a filing fee.1 Petitioner will be granted leave to apply to re-

Such an administrative termination is not a “dismissal” for
purposes of the statute of limitations, and if the case is re1

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open within 45 days.

An appropriate Order follows.

Dated: February 28, 2017
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

opened 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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