BERRY v. KIRBY

Filing 2

OPINION. Signed by Judge Noel L. Hillman on 4/3/2017. (rtm, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
:
:
Petitioner,
:
:
v.
:
:
WARDEN MARK KIRBY,
:
:
Respondent.
:
______________________________:
LARRY LAVONNE BERRY,

Civ. No. 17-1983 (NLH)
OPINION

APPEARANCES:
LARRY LAVONNE BERRY
70372-056
Fairton
Federal Correctional Institution
P.O. Box 420
Fairton, NJ 08320
Petitioner Pro se

HILLMAN, District Judge
Petitioner Larry Lavonne Berry, a prisoner confined at the
Federal Correctional Institution (“FCI”) in Fairton, New Jersey,
files this writ of habeas corpus under 28 U.S.C. § 2241,
challenging the results of his prison disciplinary hearing.
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, he failed to submit the required

account certification.

L. CIV. R. 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.
CONCLUSION
For the reasons set forth above, the Clerk of the Court will
be ordered to administratively terminate this action without

2

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 pauperis.
An appropriate Order follows.

Dated: April 3, 2017
At Camden, New Jersey

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

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).
3