DESPOSITO v. STATE OF NEW JERSEY et al

Filing 2

MEMORANDUM and ORDER that Plaintiff's request to proceed in forma pauperis is hereby DENIED, without prejudice; the Clerk of the Court shall ADMINISTRATIVELY TERMINATE this case, without filing the complaint or assessing a filing fee, etc.; th at the Clerk of the Court shall send Plaintiff the form entitled Affidavit of Poverty and Account Certification (Civil Rights)(DNJ ProSe 007 A(Rev. 5/13)) to be used by Plaintiff in any future application to proceed informa pauperis; that if Plai ntiff wishes to reopen this case, he shall so notify the Court, inwriting, within 30 days of the date of entry of this Order, etc. Signed by Judge Jose L. Linares on 3/26/14. (Clerk's Note: Blank IFP Form and this Memorandum and Order mailed to Pltf) (jd, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SONNY DESPOSITO.

Civil Action No. 14-164 1 (JLL)
Plaintiff,
v.

:

MEMORANDUM AND ORDER

STATE OF NEW JERSEY, et al.,
Defendants.

Plaintiff Sonny Desposito, a prisoner currently confined at the Federal Correctional
Institution in Miami, Florida, seeks to bring this civil action in forma pauperis, without
prepayment of fees or security, asserting claims pursuant to 42 U.S.C.
Litigation Reform Act of 1995 (the “Act”), which amends 28 U.S.C.

§ 1983. The Prison

§ 1915, establishes certain

financial requirements for prisoners who are attempting to bring a civil action informapauperis.
Under the Act, a prisoner bringing a civil action in ,förma pauperis must submit an
affidavit, including a statement of all assets, which states that the prisoner is unable to pay the
fee. 28 U.S.C.

§ 1915(a)(1). The prisoner also must submit a certified copy of his inmate trust

fund account statement for the six-month period immediately preceding the filing of his
complaint. 28 U.S.C.

§ 1 915(a)(2). The prisoner must obtain this statement from the appropriate

official of each prison at which he was or is confined. Id.
The entire fee to be paid in advance of filing a civil complaint is $400. That fee includes

a filing fee of $350 plus an administrative fee of $50, for a total of $400. A prisoner who is
granted in forma pauperis status will, instead, be assessed a filing fee of $350 and will not be
responsible for the $50 administrative fee. If in forma pauperis status is denied, the prisoner

______day

must pay the full $400, including the $350 filing fee and the $50 administrative fee, before the
complaint will be filed.
If the prisoner is granted informa pauperis status, the prisoner must pay the full amount
of the $350 filing fee as follows. 28 U.S.C.

§ 1915(b)(l). In each month that the amount in the

prisoners account exceeds $10.00, until the $350.00 filing fee is paid, the agency having custody
of the prisoner shall assess, deduct from the prisoner’s account, and forward to the Clerk of the
Court, payment equal to 20% of the preceding month’s income credited to the prisoner’s
account. 28 U.S.C.

§ 1915(b)(2).

Plaintiff may not have known when he submitted his complaint that he must pay the
filing fee. and that even if the full filing fee, or any part of it, has been paid, the Court must
dismiss the case if it finds that the action is: (1) frivolous or malicious; (2) fails to state a claim
upon which relief may be granted; or (3) seeks monetary relief against a defendant who is
immune from such relief 28 U.S.C.

§ l9l5(e)(2)(B). If the Court dismisses the case for any of

these reasons, the Act does not permit the prisoner to receive a refund of his filing fee.
If the prisoner has, on three or more prior occasions while incarcerated, brought an action
or appeal in a court that was dismissed on any of the grounds listed above, he cannot bring
another action in forma pauperis unless he is in imminent danger of serious physical injury. 28
U.S.C.

§ 19 15(g). Plaintiff has not alleged that he is in imminent danger of serious physical

inj urv.
In this action, Plaintiff failed to submit a complete in forma pauperis application as
required by 28 U.S.C.

§ 1915(a)(1), (2). Specifically, Plaintiff did not submit a certified six

month account statement. See 28 U.S.C.
THEREFORE, it is on this

§ 1915(a)(2).
of March, 2014;

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ORDERED that Plaintiff’s request to proceed in forma pauperis is hereby DENIED,
without prejudice; and it is further
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 in a timely fashion, see Jenkins v, Superintendent ofLaurel Highlands, 705 F.3d 80, 84 n.2
(2013) (describing prisoner mailbox rule generally); Dasilva v. Sheriffs Dept., 413 F. App’x 498,
502 (3rd Cir. 2011) C’[The] 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 the form entitled Affidavit of
Poverty and Account Certification (Civil Rights)(DNJ ProSe 007 A(Rev. 5/1 3)) to be used by
Plaintiff in any future application to proceed informa pauperis; and it is further
ORDERED that if Plaintiff wishes to reopen this case, 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 07102, within 30 days of the date of entry of this Order; Plaintiff’s
writing shall include either (1) a complete, signed in jörma pauperis application, including a
certified six-month prison account statement, or (2) the $400 fee including the $350 filing fee
plus the $50 administrative fee; 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

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ORDERED that the Clerk of the Court shall serve a copy of this Order upon Plaintiff by
regular U.S. mail.

Set.
9
J Linares, U.S.D.J.

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