GARDINER v. BURLINGTON COUNTY JAIL
Filing
5
OPINION. Signed by Judge Noel L. Hillman on 8/24/2016. (rtm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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Petitioner,
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v.
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BURLINGTON COUNTY JAIL,
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Respondent.
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___________________________________:
DAVID L GARDINER,
Civ. No. 16-4012 (NLH)
OPINION
APPEARANCES:
David L. Gardiner, # 43308
Burlington County Jail
P.O. Box 6000
Mount Holly, NJ 08060
Petitioner Pro se
HILLMAN, District Judge
Petitioner David L. Gardiner, a prisoner confined at the
Burlington County Jail in Mount Holly, New Jersey, files this
writ of habeas corpus under 28 U.S.C. § 2254, challenging his
New Jersey state court conviction. (ECF No. 1).
This case was
previously administratively terminated due to Petitioner’s
failure to satisfy the filing fee requirement. (ECF No. 3).
On
or about August 15, 2016, Plaintiff filed a new application to
proceed in forma pauperis (ECF No. 4), and the case was reopened
for review by a judicial officer.
As previously explained to Petitioner, the filing fee for a
petition for writ of habeas corpus is $5.00.
Pursuant to Local
Civil Rule 54.3(a), the filing fee is required to be paid at the
time the petition is presented for filing.
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 certification.
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 a complete application for leave to proceed in
forma pauperis.
Specifically, Petitioner failed to submit an
institutional account statement for a six-month period that is
certified by an authorized officer of the institution which
indicates (1) the amount presently on deposit in the prisoner's
prison account and, (2) the greatest amount on deposit in the
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prisoners institutional account during the six-month period
prior to the date of the certification. L.CIV.R. 81.2(b).
Accordingly, this matter will again 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.
CONCLUSION
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 reopen
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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within 45 days, by either prepaying the filing fee or submitting
a complete application for leave to proceed in forma pauperis.
An appropriate Order will be entered.
___s/ Noel L. Hillman_____
NOEL L. HILLMAN
United States District Judge
Dated: August 24, 2016
At Camden, New Jersey
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