VALDEZ v. SCHILLARI et al

Filing 2

OPINION. Signed by Judge John Michael Vazquez on 5/26/16. (cm )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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Plaintiff,
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v.
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FRANK X. SCHILLARI, et al.,
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Defendants.
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DAVID VALDEZ,

Civ. No. 16-2943 (JMV)
OPINION

APPEARANCES:
David Valdez, # 1004778/160231G
Bayside State Prison
4293 Route 47, F-1
Leesburg, NJ 08327
Plaintiff Pro se

VAZQUEZ, District Judge
Plaintiff David Valdez, a prisoner confined at Bayside State Prison in Leesburg, New
Jersey, seeks to bring this civil action in forma pauperis, without prepayment of fees or security,
asserting claims pursuant to 42 U.S.C. § 1983.
Pursuant to Local Civil Rule 54.3, the Clerk shall not be required to enter any suit, file
any paper, issue any process, or render any other service for which a fee is prescribed, unless the
fee is paid in advance. Under certain circumstances, however, this Court may permit an indigent
plaintiff to proceed in forma pauperis.
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. A prisoner who is denied in forma pauperis status
must pay the full $400, including the $350 filing fee and the $50 administrative fee, before the
complaint will be filed.
Title 28 U.S.C. § 1915, establishes certain financial requirements for prisoners who are
attempting to bring a civil action in forma pauperis. Under § 1915, a prisoner seeking to bring a
civil action in forma pauperis must submit an affidavit, including a statement of all assets and
liabilities, 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(s) for the
six-month period immediately preceding the filing of his complaint. 28 U.S.C. § 1915(a)(2).
The prisoner must obtain this certified statement from the appropriate official of each
correctional facility at which he was or is confined during such six-month period. Id.
If the prisoner is granted in forma pauperis status, the prisoner must pay the full amount
of the $350 filing fee, in installments, as follows. 28 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 an installment payment equal to 20% of the preceding month’s
income credited to the prisoner’s account. 28 U.S.C. § 1915(b)(2).

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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: (1) is 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. § 1915(e)(2)(B) (in forma pauperis actions); see also 28
U.S.C. § 1915A (dismissal of actions in which prisoner seeks redress from a governmental
defendant); 42 U.S.C. § 1997e (dismissal of prisoner actions brought with respect to prison
conditions). If the Court dismisses the case for any of these reasons, § 1915 does not suspend
installment payments of the filing fee or permit the prisoner to get back the filing fee, or any part
of it, that has already been paid.
If the prisoner has, on three or more prior occasions while incarcerated, brought in federal
court an action or appeal that was dismissed on the grounds that it was frivolous or malicious, or
that it failed to state a claim upon which relief may be granted, he cannot bring another action in
forma pauperis unless he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g).
In this action, Plaintiff failed to submit a complete in forma pauperis application as
required by 28 U.S.C. § 1915(a)(1), (2). More specifically, he does not submit an institutional
account statement, certified by an appropriate official, for the six-month period immediately
preceding the filing of this Complaint. See, e.g., Hairston, Sr. v. Gronolsky, 348 F. App’x 716
(3d Cir. 2009) (affirming administrative termination of prisoner civil rights action for failure to
comply with requirements of § 1915); Tyson v. Youth Ventures, L.L.C., 42 F. App’x 221 (10th
Cir. 2002) (affirming dismissal without prejudice of civil action where prisoner submitted only
uncertified copy of institutional account statement); Johnson v. United States, 79 Fed.Cl. 769
(2007) (same); see also Rohn v. Johnston, 415 F. App’x 353, 354-55 (3d Cir. 2011) (affirming

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dismissal without prejudice of civil action where prisoner failed to submit the required affidavit
of poverty).
To the extent Plaintiff asserts that correctional officials have refused to provide the
certified account statement, any such assertion must be supported by an affidavit detailing the
circumstances of Plaintiff’s request for a certified institutional account statement and the
correctional officials’ refusal to comply, including the dates of such events and the names of the
individuals involved.
The allegations of the Complaint do not suggest that Plaintiff is in imminent danger of
serious physical injury. See 28 U.S.C. § 1915(g).
Finally, the Court notes that in his submissions, Plaintiff writes his name as both “David
Valdez” and “David Valdez Martinez.” Compare (Compl. 1, ECF No. 1) with (IFP Application
1, ECF No. 1-1). In the event Plaintiff seeks to reopen this matter, he is directed to clarify his
name.
CONCLUSION
For the reasons set forth above, the Clerk of the Court will be ordered to administratively
terminate this action, without filing the Complaint or assessing a filing fee.1 Plaintiff will be
granted leave to apply to reopen within 45 days. An appropriate Order will be entered.

s/ John Michael Vazquez
JOHN MICHAEL VAZQUEZ
United States District Judge
Dated: 05/26/16
At Newark, New Jersey
Such an administrative termination is not a “dismissal” for purposes of the statute of
limitations, and if the case is re-opened pursuant to the terms of the accompanying Order, it is
not subject to the statute of limitations time bar if it was originally submitted timely. See
Houston v. Lack, 487 U.S. 266 (1988) (prisoner mailbox rule); Papotto v. Hartford Life & Acc.
Ins. Co., 731 F.3d 265, 275-76 (3d Cir. 2013) (collecting cases and explaining that a district
court retains jurisdiction over, and can reopen, administratively closed cases).
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