WASHINGTON v. U.S. DEPARTMENT OF JUSTICE et al

Filing 2

MEMORANDUM, ORDER directing clerk to administratively terminate this case. ORDERED that the Clerk shall supply plaintiff a blank IFP form. ORDERED that if Plaintiff wishes to re open this case, he shall notify the court within thirty days after the date of entry of this order etc. Signed by Judge Renee Marie Bumb on 11/05/2018. (cry,N.M)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
JEFFREY D. WASHINGTON,
Plaintiff
v.
U.S. DEPARTMENT OF JUSTICE,
et al.,

Defendants

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CIV. NO. 18-9199 (RMB)

MEMORANDUM AND ORDER

BUMB, DISTRICT JUDGE
Plaintiff Jeffrey D. Washington is a prisoner confined in the
Federal Correctional Institution in Fort Dix, New Jersey. He brings
this civil action for recovery of lost property, citing 31 U.S.C.
§ 3723. (Compl., ECF No. 1.) Plaintiff did not pay the filing fee1
or submit an application to proceed in forma pauperis under 28
U.S.C. § 1915.2

1 The filing fee for a civil action is $350, and there is a $50

administrative fee, for a total of $400. See 28 U.S.C. § 1914.
2 28 U.S.C. § 1915(a) provides:

(a)(1) Subject to subsection (b), any court of
the
United
States
may
authorize
the
commencement, prosecution or defense of any
suit, action or proceeding, civil or criminal,
or appeal therein, without prepayment of fees
or security therefor, by a person who submits
an affidavit that includes a statement of all
assets such prisoner possesses that the person
is unable to pay such fees or give security

Local Civil Rule 5.1(f) provides:
Any papers received by the Clerk without
payment of such fees as may be fixed by statute
or by the Judicial Conference of the United
States for the filing thereof shall be marked
"received" and the date and time of receipt
shall be noted thereon.
The Court will administratively terminate this matter, but
Plaintiff will be permitted to reopen if he timely submits the
filing fee or in the alternative submits a properly completed IFP
application.
When a prisoner is permitted to proceed without payment of
the filing fee, 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b) and 42 U.S.C.
§ 1997e(c) require courts to review a complaint in a civil action
and sua sponte dismiss any claims that are (1) frivolous or
malicious; (2) fail to state a claim on which relief may be

therefor. Such affidavit shall state the
nature of the action, defense or appeal and
affiant's belief that the person is entitled
to redress.
(2) A prisoner seeking to bring a civil action
or appeal a judgment in a civil action or
proceeding without prepayment of fees or
security therefor, in addition to filing the
affidavit filed under paragraph (1), shall
submit a certified copy of the trust fund
account
statement
(or
institutional
equivalent) for the prisoner for the 6-month
period immediately preceding the filing of the
complaint or notice of appeal, obtained from
the appropriate official of each prison at
which the prisoner is or was confined.
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granted; or (3) seek monetary relief against a defendant who is
immune from such relief.3
Plaintiff should be aware that it is not clear from the
present complaint whether he fully exhausted his administrative
remedies before bringing this claim. See 28 C.F.R. § 543.32(g)
(“If your claim is denied or you are dissatisfied with a settlement
offer, you may request, in writing, that the Bureau of Prisons
reconsider your claim in the administrative stage … If you are
dissatisfied with the final agency action, you may file suit in an
appropriate

U.S.

District

Court

as

no

further

administrative

action is available”; Ali v. Federal Bureau of Prisons, 552 U.S.
214,

228

n.7,4

2425

(2008)

(Kennedy,

J.,

dissenting).

3

This Court’s conclusive screening of Plaintiff’s claims is
reserved until he obtains in forma pauperis status. See Izquierdo
v. New Jersey, 532 F. App’x 71, 72-73 (3d Cir. July 25, 2013)
(district court may decide whether to dismiss the complaint under
28 U.S.C. § 1915(e)(2) after leave to proceed IFP is granted).
4 The Court stated:

Congress,
we
note,
did
provide
an
administrative remedy for lost property
claimants like petitioner. Federal agencies
have authority under 31 U.S.C. § 3723(a)(1) to
settle certain “claim[s] for not more than
$1,000 for damage to, or loss of, privately
owned property that ... is caused by the
negligence of an officer or employee of the
United States Government acting within the
scope of employment.”
5 The dissent in Ali explained:

[T]here are already in place administrative
3

Additionally, the United States is the sole proper defendant to an
FTCA claim. CNA v. United States, 535 F.3d 132, 138 n.2 (3d Cir.
2008).
IT IS therefore on this 5th day of November 2018,
ORDERED that the Clerk of the Court shall administratively
terminate this case without filing the complaint or assessing a
filing fee; Plaintiff is informed that administrative termination
is not a “dismissal” for purposes of the statute of limitations,
and that if the case is reopened, it is not subject to the statute
of limitations time bar if it was originally filed timely, Dasilva
v. Sheriff's Dept., 413 F. App’x 498, 502 (3rd Cir. 2011) (“[the]

procedures that must be exhausted before the
suit is allowed, diminishing the number of
frivolous suits that would be heard in federal
court. See 42 U.S.C. § 1997e(a) (“No action
shall be brought with respect to prison
conditions under section 1983 of this title,
or any other Federal law, by a prisoner
confined in any jail, prison, or other
correctional
facility
until
such
administrative remedies as are available are
exhausted”). Under 28 CFR § 543.31(a) (2007),
the “owner of the damaged or lost property”
first must file an FTCA claim with the BOP
regional office; the BOP, in turn, is
authorized by statute to settle administrative
claims for not more than $1,000, see 31 U.S.C.
§ 3723(a), which likely encompasses most
claims brought by federal prisoners. Only if
the prisoner is “dissatisfied with the final
agency action” may he or she file suit in an
“appropriate U.S. District Court.” 28 CFR §
543.32(g).

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statute of limitations is met when a complaint is submitted to the
clerk before the statute runs …”); and it is further
ORDERED that the Clerk of the Court shall send Plaintiff a
blank form “Affidavit of Poverty and Account Certification (Civil
Rights)” DNJ-Pro Se-007-A-(Rev.05/2013); and it is further
ORDERED that if Plaintiff wishes to reopen this case, she
shall so notify the Court, in writing addressed to the Clerk of
the Court, Mitchell H. Cohen Building & U.S. Courthouse, 4th &
Cooper Streets, Room 1050, Camden, NJ 08101, within 30 days of the
date of entry of this Order; Plaintiff’s writing shall include
either (1) a complete, signed in forma pauperis application or (2)
the $400.00 filing and administrative fee; and (3) Plaintiff is
permitted to file an amended complaint to establish whether he has
fully exhausted his administrative remedies and to substitute the
United States as the defendant; and it is further
ORDERED that if Plaintiff does not submit a complete, signed
in

forma

pauperis

application

or

the

$400.00

filing

and

administrative fee within 30 days of the date of this Order, this
action is dismissed without prejudice to Plaintiff filing a new
action; upon such dismissal, however, any new action will be
subject to a new filing fee or IFP application, and will be subject
to the appropriate statute(s) of limitations at the time of filing;
see Bricker v. Turner, 396 F. App’x 804, 804 n. 1 (per curiam) (3d
Cir. 2010) (affirming district court’s order dismissing civil
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rights action without prejudice as a sanction for failure to obey
a court order or for failure to diligently prosecute); and it is
further
ORDERED that upon receipt of a writing from Plaintiff stating
that he wishes to reopen this case, and either a complete in forma
pauperis application or payment of the filing and administrative
fees within the time allotted by this Court, the Clerk of the Court
will be directed to reopen this case; and it is finally
ORDERED that the Clerk of the Court shall serve a copy of
this Order upon Plaintiff by regular U.S. mail.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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