KAPLAN v. GARAFALO, et al
MEMORANDUM AND ORDER reopening this case for the purpose of deciding the pending matters. Plaintiff's 13 Motion to Reopen, and request to proceed in forma pauperis is denied, and if Plaintiff wishes to reopen this case he shall notify the Court in writing w/in 30 days of the date of entry of this Order. Signed by Judge Claire C. Cecchi on 2/2/17. (sr, )(N/M)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RICHARD P. KAPLAN,
Civil Action No. 15-1150 (CCC)
MEMORANDUM AND ORDER
JOHN GARAFALO, et al.,
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 in forma
pauperis (“IFP”), without prepayment of fees or security, asserting claims pursuant to 42 U.S.C.
§ 1983. The Court has previously denied three separate IFP applications, the last denial due to
Plaintiffs failure to submit a six-month prison account statement for the period between August
2, 2014 and february 2, 2015—the period immediately preceding the filing of the complaint—as
required by federal law pursuant to 2$ U.S.C.
§ 191 5(a)(2)d. (See ECF No. 12 at 1.)
Presently before the Court is Plaintiffs Motion to Reopen and his fourth IFP application.
(ECF No. 13.) Along with his fourth application, Plaintiff submits yet another prison account
statement, this time for the period between february 1, 2016 and August 9, 2016. That is still not
the six-month account statement for the period immediately preceding the filing of the complaint
as required by federal law. See 28 U.S.C.
§ 1915(a)(2). As the Third Circuit opined, § 1915
“governs only the circumstances under which a prisoner may ‘bring’ a civil action in forma
pauperis, which means that its impact must be assessed at the time a prisoner files his or her
complaint.” Nicholas v. Corbett, 254 F. App’x 117, 118 (3d Cir. 2007). The Court cannot assess
whether Plaintiff may “bring a civil action
without prepayment of fees or security therefor,”
§ 1915(a)(2), without information indicating Plaintiffs ability to pay the filing fee, or
the lack thereof, at the time he filed his complaint. While, in four IFP applications, Plaintiff has
submitted various statements that span the relevant six-month period, not all of the statements have
been certified by prison officials. (See ECF No. 3 at 2-3.) As such, Plaintiff still has not complied
with the statutory requirements. See 28 U.S.C.
§ 1915(a)(2). Plaintiff must submit a six-month
prison account statement for the period between August 2, 2014 and February 2, 2015 that is
certified by a prison official.
IT IS therefore on this
ORDERED that the Clerk shall open the case for the purpose of deciding the pending
matters; it is further
ORDERED that the Motion to Reopen, ECF No. 13, is hereby DENIED; it is further
ORDERED that Plaintiffs request to proqeed informa pauperis, ECF No. 13-4, is hereby
DENIED; 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, within thirty (30) days of the date of entry of this
Order; Plaintiffs writing shall include either (1) a complete, signed informa pauperis application,
including a proper six-month prison account statement, or (2) 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 either a complete in forma pauperis application or payment of the filing and
administrative fees within the time allotted by this Court, the Clerk will be directed to reopen this
case; it is further
ORDERED that the Clerk shall serve a copy of this Order upon Plaintiff by regular mail;
and it is further
ORDERED that the Clerk shall close this case.
Claire C. Cecchi, U.S.D.J.
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