KAPLAN v. GARAFALO, et al
MEMORANDUM AND ORDER that Plaintiffs request to proceed in forma pauperis is DENIED WITHOUT PREJUDICE, and the Clerk shall ADMINISTRATIVELY TERMINATE this case, without filing the complaint or assessing a filing fee. The Clerk shall send Plai ntiff 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, and if Plaintiff wishes to reopen this case, he shall s o notify the Court, in writing addressed to the Clerk of the Court, Martin Luther King Building & U.S. Courthouse, 50 Walnut Street, Newark, NJ 071018, within 30 days of the date of entry of this Order; etc. Signed by Judge Claire C. Cecchi on 7/30/15. (sr, )
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, without prepayment of fees or security, asserting claims pursuant to 42 U.S.C.
The Prison Litigation Reform Act of 1995 (the “Act”), which amends 28 U.S.C.
§ 1915, establishes
certain financial requirements for prisoners who are attempting to bring a civil action in forma
Under the Act, a prisoner bringing a civil action informa pauperis must submit an affidavit,
including a statement of all assets, which states that the prisoner is unable to pay the fee. 2$ 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. 2$ U.S.C.
§ 191 5(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
informapauperis status will, instead, be assessed a filing fee of $350 and will not be responsible
for the $50 administrative fee. If informa pauperis status is denied, the prisoner must pay the full
$400, including the $350 filing fee and the $50 administrative fee, before the complaint will be
If the prisoner is granted informapauperis status, the prisoner must pay the full amount of
the $350 filing fee as follows. 2$ U.S.C.
§ 1915(b)(1). In each month that the amount in the
prisoner’s account exceeds $10.00, until the $350.00 filing fee is paid, the agency having custody
of the prisoner shall assess, deduct from the prisoner’s account, and forward to the Clerk of the
Court, payment equal to 20% of the preceding month’s income credited to the prisoner’s account.
Plaintiff may not have known when he submitted his complaint that he must pay the filing
fee, and that even if the full filing fee, or any part of it, has been paid, the Court must dismiss the
case if it finds that the action is: (1) frivolous or malicious; (2) fails to state a claim upon which
relief maybe granted; or (3) seeks monetary relief against a defendant who is immune from such
relief. 2$ U.S.C.
§ l915(e)(2)(B). If the Court dismisses the case for any of these reasons, the Act
does not permit the prisoner to get his filing fee back.
In this action, Plaintiff failed to submit a complete in forma pauperis application as
required by 2$ U.S.C.
§ 1915(a). Specifically, he failed to submit a certified six month prison
account statement. See 28 U.S.C.
§ 1915(a)(2). Plaintiff submitted an account statement dating
from April 4, 2014 up until December 2, 2014, while the filing date of his Complaint was February
10, 2015, and the Complaint was dated February 2, 2015. Thus, Plaintiff still needs to submit an
account statement covering the period from December 2, 2014 through February 2, 2015.
Plaintiffs current submission does not satisfy the statutory requirement of a six month statement
immediately preceding the filing of his Complaint. In addition, Plaintiffs account statement was
not certified by the appropriate prison official.
THEREFORE, it is on this
ORDERED that Plaintiffs request to proceed in forma pauperis is hereby DENIED
WITHOUT PREJUDICE; 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 timely, see
Jenkins v. Superintendent ofLaurel Highlands, 705 F.3d 80, 84 n.2 (2013) (describing prisoner
mailbox rule generally); Dasilva v. Sheriffs Dep ‘t, 413 F. App’x 498, 502 (3rd Cir. 2011) (“[The]
statute of limitations is met when a complaint is submitted to the clerk before the statute runs
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. 5/13)) to be used by
Plaintiff in any future application to proceed informa pauperis; 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 071018, within 30 days of the date of entry of this Order; Plaintiffs
writing shall include either (1) a complete, signed in forma 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; 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
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.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?