CUELLO v. ROGERS et al

Filing 18

MEMORANDUM AND ORDER DISMISSING CASE - It is ORDERED that the 16 MOTION to Appoint Pro Bono is administratively terminated; and it is further ORDERED that if Mr. Cuello intends to proceed with a civil rights action pursuant to 42 U.S.C. § 1983 , he shall so notify the Court, in writing addressed to the Clerk of the Court, Martin Luther King Building & U.S. Courthouse, 50 Walnut Street, Newark, NJ 07101, within 30 days of the date of entry of this Order. His writing shall include a signed and dated Complaint, and either a complete, signed informa pauperis application or the $400 fee including the $350 filing fee plus the $50 administrative fee; and it is further ORDERED that upon receipt of a Complaint and 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 docket the Complaint and associated filings as a new action; at that time, the Clerk of the Court shall also docket the application for pro bono counsel (ECF No. 16) in the new action.(Copies Sent)***CIVIL CASE TERMINATED***. Signed by Judge Madeline C. Arleo on 5/2/2016. (seb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Civil Action No. 06-2117 (MCA)

AUGUSTO N. CUELLO,
Petitioner,

MEMORANDUM AND
ORDER

v.
DISTRICT OF NEW JERSEY,
Respondent.

This matter has been opened to the Court by pro se litigant Augusto N. Cuello’s filing of
an application for pro bono counsel, which is dated October 29, 2015. (ECF No. 16.) The
application appears to have been docketed in Petitioner’s habeas case in error, as this action was
dismissed with prejudice by the district court in 2006. The application for pro bono counsel
appears to relate to a new claim for denial of access to the law library brought pursuant to 42
U.S.C.

§

1983’ (Id., application at page 1); however, the application is not accompanied by a

Complaint. Mr. Cuello has also failed to submit the filing fee or an application to proceed in
forma pauperis (“IFP”).
Pursuant to 28 U.S.C.

§

1915(a)(1), a court may allow a litigant to proceed without

prepayment of fees if he submits a proper IFP application. Although Section 1915 refers to
“prisoners,” federal courts apply Section 1915 to non-prisoner IFP applications. Peterson v.
Weiss, No. 12-543 1, 2012 WL 6042795, at *1 (D.N.J. Dec. 3, 2012); ElAmeen Bey v. Stumpf
No. 11—5684, 2011 WL 4962326, at

*

11 n. 7 (D.N.J. Oct.17, 2011) (“Although Section 1915(a)

The Court also notes that the District of New Jersey is listed as the Respondent in the new action;
however, the District of New Jersey would not be a proper respondent in an action alleging denial
of law library access under Section 1983.
1

refers to a ‘statement of all assets such prisoner possesses,’ this section has been applied by
courts in their review of applications of non-prisoners as well.”) (citing Douris v. Middletown
Twp., 293 Fed. App’x 130 (3d Cir. 2008)). The decision to grant or deny an IFP application is
based solely on the economic eligibility of the litigant. Peterson, 2012 WL 6042795, at * 1
(citing Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir. 1976)). The Court will instruct the Clerk of the
Court to send Mr. Cuello AO 239 (Rev. 12/13) Application to Proceed in District Court Without
Prepaying Fees or Costs (Long Form).
For docket management puiposes, the Court will also administratively terminate Mr.
Cuello’s application for pro bono counsel at this time. (ECF No. 16.) If Mr. Cuello files his
Complaint, and either a complete application to proceed informapauperis or the required filing
fee, the Clerk of the Court shall docket the Complaint and associated filings as a new action and
also docket his application for pro bono counsel (ECF No. 16) in the new action.
THEREFORE, it is on this day of

,

2016;

ORDERED that the Clerk of the Court shall amitiistratively terminate the pending
application for pro bono counsel (ECF No. 16

), which has been docketed in this case in error;

and it is further
ORDERED that the Clerk of the Court shall send Mr. Cuello a blank form application to
proceed informa pauperis-non prisoner AO 239 (Rev. 12/13), Application to Proceed in District
Court Without Prepaying Fees or Costs (Long Form); and it is further
ORDERED that if Mr. Cuello intends to proceed with a civil rights action pursuant to 42
U.S.C.

§

1983, he shall so notify the Court, in a writing addressed to the Clerk of the Court,

Martin Luther King Building & U.S. Courthouse, 50 Walnut Street, Newark, NJ 07101, within
30 days of the date of entry of this Order; his writing shall include (1) a signed and dated

2

Complaint, and either a complete, signed informa pauperis application or the $400 fee including
the $350 filing fee plus the $50 administrative fee; and it is further
ORDERED that upon receipt of a Complaint and a complete informa 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 docket the Complaint and associated filings as a new
action; at that time, the Clerk of the Court shall also docket the application for pro bono counsel
(ECF No. 16) in the new action and it is further
;
2
ORDERED that the Clerk of the Court shall serve a copy of this Order upon Mr. Cuello
by regular U.S. mail and close this case accordingly.

4

Madeline Cox Arleo, District Judge
United States District Court

2

To the extent Mr. Cuello seeks and is receives IFP status, the Complaint will not be filed,
however, until the district court completes its sua sponte screening.
3