MACELLARI v. IMPERIAL

Filing 4

MEMORANDUM ORDER Granting Plaintiff's 1 -1 Application IFP; DISMISSING Plaintiff's 1 Complaint WITHOUT PREJUDICE; Plaintiff may have the case reopened, if they file an amended complaint within thirty days of the date of the entry of this Memorandum Order; Defendant shall not be served before the Court's sua sponte screen of an amended complaint; directing the Clerk of Court to serve a copy of this Memorandum Order on Plaintiff to his address of record by regular U.S. mail and CLOSE this matter. Signed by Chief Judge Renee Marie Bumb on 3/4/2025. (sms2, n.m.)

Case 1:25-cv-01236-RMB-SAK

Document 4

Filed 03/04/25

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
MARIO MACELLARI,
Plaintiff,
Civil No. 25-cv-1236 (RMB/SAK)
v.
GREG IMPERIAL,

MEMORANDUM ORDER

Defendant.

RENÉE MARIE BUMB, Chief United States District Judge:
Pro se plaintiff Mario Macellari asks this Court to allow him to proceed in forma pauperis
(IFP) so he can sue Defendant Greg Imperial—Macellari’s appointed legal counsel
representing him in an apparently ongoing criminal prosecution. 28 U.S.C. § 1915 allows
federal courts to waive the prepayment of court fees if the litigant “is unable to pay such fees.”
28 U.S.C. § 1915(a). But once a court grants an IFP application, § 1915 requires the court to
screen the litigant’s complaint to ensure, among other things, it states a claim and that the
lawsuit is not frivolous or malicious. Id. § 1915(e)(2)(B).
Third Circuit courts only grant leave to proceed IFP “based on a showing of
indigence.” Douris v. Newtown Borough, Inc., 207 F. App’x 242, 243 (3d Cir. 2006). While IFP
status is not reserved solely for the “absolute[] destitute[,]” the litigant “must establish that
he is unable to pay the costs of his suit.” Hurst v. Shalk, 659 F. App’x 133, 134 (3d Cir. 2016)
(quoting Walker v. People Express Airlines, Inc., 886 F.2d 598, 601 (3d Cir. 1989)). The litigant
seeking IFP status shoulders the burden “to provide the [Court] with the financial information

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Case 1:25-cv-01236-RMB-SAK

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it need[s] to make a determination as to whether he qualifie[s] for [IFP] status.” Freeman v.
Edens, 2007 WL 2406789, at *1 (D.N.J. Aug. 17, 2007) (first, second, and third alterations in
original) (citation and internal quotation marks omitted).
Here, after considering Macellari’s Affidavit of Poverty and Account Certification,
and the accompanying Offender Management System account record, the Court finds he
cannot pay the court fees. So the Court grants his IFP application.
Still, by 28 U.S.C. § 1915(e)(2)(B)(i)-(ii), the Court screens Macellari’s Complaint to
ensure he states a claim for relief and that his lawsuit is not “frivolous or malicious.”
Macellari’s pro se status does not relieve him of his obligation to allege enough facts in the
Complaint to support his claims. Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.
2013).
While unclear, Macellari appears to raise claims against Imperial who is currently
representing Macellari in an ongoing criminal prosecution. [Compl. ¶ 6.] Macellari appears
unsatisfied with Imperial’s representation, claiming Macellari had advised Imperial that he
does not want counsel to represent him. [Id.] Despite those instructions, Macellari claims
Imperial continues to represent him over his objections. [Id.] Macellari also claims that
Imperial and an unidentified judge “worked together to do this to [him.]” [Id.]
Even under the liberal reading that this Court gives to Macellari’s Complaint, see
Erickson v. Pardus, 551 U.S. 89, 94 (2007), the Court is unable to determine if it has subject
matter jurisdiction over this lawsuit—diversity of citizenship or federal question jurisdiction.
28 U.S.C. §§ 1331, 1332. Without more factual allegations, Macellari’s alleged dissatisfaction
with Imperial’s legal representation is insufficient to establish subject matter jurisdiction.

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Case 1:25-cv-01236-RMB-SAK

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Filed 03/04/25

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Accordingly, this Court dismisses Macellari’s Complaint without prejudice for lack of
jurisdiction.
For the above reasons, and for other good cause shown,
IT IS on this 4th day of March, 2025, hereby,
ORDERED that the Court GRANTS Plaintiff’s IFP application; and it is further
ORDERED that Plaintiff’s Complaint is DISMISSED WITHOUT PREJUDICE
(Docket No. 1); and it is further
ORDERED that Plaintiff may have the above-entitled case reopened, if, within thirty
days of the date of the entry of this Memorandum Order, Plaintiff files an amended complaint;
and it is further
ORDERED that Defendant shall not be served before the Court’s sua sponte screen of
an amended complaint; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Memorandum Order
on Plaintiff to his address of record by regular U.S. mail; and it is finally
ORDERED that the Clerk of the Court shall CLOSE this matter.
s/Renée Marie Bumb
RENÉE MARIE BUMB
Chief United States District Judge

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