KAPLAN v. GARAFALO, et al

Filing 12

MEMORANDUM AND ORDER REOPENING CASE; denying pltf's request to proceed in forma pauperis; administratively terminating the case, without filing the complt.; if Plaintiff wishes to reopen this case, he shall so notify the Court, in writing within ninety (90) days of the date of entry of this Order, Plaintiffs writing shall include the $400 fee, etc. Signed by Judge Claire C. Cecchi on 5/31/2016. (nr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RICHARD P. KAPLAN,
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Civil Action No. 15-1150 (CCC)

$

MEMORANDUM AND ORDER

Plaintiff,
v.
JOHN GARAFALO, et al.,
Defendants.

Plaintiff Richard P. Kaplan, a convicted and sentenced prisoner currently confined at
Federal Correctional Institution in Otisville, New York, seeks to bring this civil action informa
pauperis (“IF P”), without prepayment of fees or security, asserting claims pursuant to 42 U.S.C.

§ 1983. Presently before the Court is Plaintiffs third IFP application, ECF No. 10; the Court
dismissed the previous two for failure to submit the proper six-month prison account statement as
required by 28 U.S.C.

§ 1915(a)(2). (See ECF Nos. 3 & 9.)

As the Court stated in its prior order, because the Complaint was dated February 2, 2015,
under the IFP statute, the proper six-month account statement should have been for the period
between August 2, 2014 and February 2, 2015. (ECF No. 9 at 2); see 2$ U.S.C.

§ 1915(a)(2) (a

prisoner seeking IFP status shall “submit a certified copy of the trust fund statement

.

.

.

for the

prisoner for the 6-month period immediately preceding the filing of the complaint”) (emphasis
added). As such, Plaintiffs latest account statement, covering the period between October 1, 2014
and September 8, 2015, is technically non-compliant with the statute. Nevertheless, regardless of
the procedural defects, the account statement also shows that in the eleven-month period addressed

by the statement, Plaintiff received an income of $3,595.00. This amounts to an income of $326.82
per month.
In Shahin v. Sec. ofDeL, 532 F. App’x 123, 124 (3d Cir. 2013), the Third Circuit upheld
an IFP denial by the district court, even when the plaintiff showed that she only had a monthly
income of $95 from self-employment. Because the plaintiff was provided, by her husband, “with
food, clothing, shelter, paying her medical and travel expenses and even her business losses,” the
Third Circuit reasoned, “requiring [plaintiff] to pay her own litigation expenses, although requiring
her to save for several months, would not deprive her of the ‘necessities of life.” Id. Here,
Plaintiffs income is almost three times of the $95/month threshold established in Shahin, and
Plaintiff is also similarly situated in that he has his food, clothing, shelter, and medical expenses
paid for by the prison. Although the Court understands that Plaintiff may need some money for
minor necessities, Plaintiff does not need $326.22 a month for such expenses. Like the plaintiff in
Shah in, Plaintiff may have to save up for two or three months in order to pay the filing fee, but
such requirement “would not deprive [him] of the ‘necessities of life.” 532 F. App’x at 124.
IT IS therefore on this

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day of

,

2016,

ORDERED that the Clerk shall REOPEN the case by making a new and separate docket
entry reading “CIVIL CASE REOPENED”; it is further
ORDERED that Plaintiffs request to proceed in forma pauperis, ECF No. 3, is hereby
DENIED; it is further
ORDERED that the Clerk of the Court shall ADMINISTRATIVELY TERMINATE
this case, without filing the complaint;
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

2

Walnut Street, Newark, NJ 071018, within ninety (90) days of the date of entry of this Order;
Plaintiffs writing shall include the $400 fee—the $350 filing fee plus the $50 administrative fee;
it is further
ORDERED that upon receipt of a writing from Plaintiff stating that he wishes to reopen
this case, and payment of the filing and administrative fees within the time allotted by this Court,
the Clerk will be directed to reopen this case; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Order upon Plaintiff by

regular U.S. mail.

Claire C. Cecchi, U.S.D.J.

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