HOWARD v. FERMIN et al

Filing 5

MEMORANDUM OPINION AND ORDER denying Plaintiff's request to proceed in forma pauperis without prejudice. The Clerk of the Court shall ADMINISTRATIVELY TERMINATE this case, without filing the complaint or assessing a filing fee. The Clerk of the Court shall send Plaintiff a blank application to proceed in forma pauperis. Signed by Judge Julien Xavier Neals on 3/26/2024. (qa, )(n/m)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DERRICK Z. HOWARD,
Plaintiff,
v.
OFFICER MARIO FERMIN, et. al.,
Defendants.

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Civ. Action No. 23-22346 (JXN) (ESK)
MEMORANDUM OPINION
&
ORDER

NEALS, District Judge:
This matter comes before the Court on pro se Plaintiff Derrick Z. Howard’s (“Plaintiff”),
complaint alleging claims under 42 U.S.C. § 1983 (ECF No. 1) and application to proceed in forma
pauperis (the "IFP"). (ECF No. 1-2). For the reason set forth below, Plaintiff’s IFP is DENIED,
and this matter is ADMINISTRATIVELY TERMINATED.
The Prison Litigation Reform Act of 1995 (the “Act”), which amends 28 U.S.C. § 1915,
established financial requirements for prisoners attempting to bring a civil action in forma
pauperis. Under the Act, a prisoner “must submit[] an affidavit that includes a statement of all
assets[,]” which states that the prisoner is “unable to pay” the fee. § 1915(a)(1). He or she must
also “submit a certified copy of the trust fund account statement” for the “6-month period
immediately preceding the filing of the complaint . . . .” § 1915(a)(2). This statement must be
“obtained from the appropriate official of each prison at which the prisoner is or was confined”
during the 6-month period. Id.
The total fee to file a civil complaint in this Court is $405. Indeed, before filing a civil
complaint, a prisoner must pay the $405 fee, which includes a $350 filing fee and $55

administrative fee. If allowed to proceed in forma pauperis, he or she will not be accessed the $55
administrative fee and instead, pay the $350 filing fee as follows. Pay “an initial partial filing fee
of 20 percent of the greater of” the “average monthly deposits to the prisoner’s account;” or the
“average monthly balance in the prisoner’s account for the 6-month period immediately preceding
the filing of the complaint . . . .” § 1915(b)(1)(A)-(B). Thereafter, “make monthly payments of
20 percent of the preceding month’s income credited to the prisoner’s account.” § 1915(b)(2).
The “agency having custody of the prisoner” must also “forward payments from the prisoner’s
account to the clerk of the court each time the amount in the account exceeds $10 until the filing
fees are paid.” Id.
Even if the fee is paid, the Court may dismiss the matter. It may do so if the case 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.” § 1915(e)(2)(B). If
dismissed, the Plaintiff’s filing fee is not refunded.
Here, the IFP is deficient because Plaintiff failed to include a certification signed by the
appropriate prison official. (ECF No. 1-2 at 3). Thus, Plaintiff’s IFP is denied, and this matter is
administratively terminated. Accordingly, it is hereby,
ORDERED that Plaintiff’s request to proceed in forma pauperis (ECF No. 1-2) is
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 originally timely
filed timely (see DaSilva v. Sheriff's Dep’t, 413 F. App’x 498, 502 (3d Cir. 2011) (“[The] statute

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of limitations is met when a complaint is submitted to the clerk before the statute runs . . . .”)
(citation and internal quotations omitted)); it is further
ORDERED that the Clerk of the Court shall send Plaintiff a blank application to
proceed in forma pauperis (DNJ- ProSe-007 – A (Rev. 12/2020)); it is further
ORDERED that if Plaintiff wishes to reopen this case, he shall notify the Court in writing
within 30 days of entry of this Order, addressed to the Clerk of the Court, Martin Luther King
Building & U.S. Courthouse, 50 Walnut Street, Newark, NJ 07102; Plaintiff’s writing shall include
either: a (1) 6-month account statement certified by the appropriate prison official; or (2) the $405
fee, including the $350 filing fee plus the $55 administrative fee; it is further
ORDERED that upon receipt of a Plaintiff’s writing and either a certified copy of a 6month account statement or payment of the filing and administrative fees within the specified time,
the Clerk of the Court shall reopen this case; and it is
ORDERED that the Clerk of the Court shall serve a copy of this Order upon Plaintiff by
regular U.S. mail.
s/ Julien Xavier Neals
JULIEN XAVIER NEALS
United States District Judge

DATED: March 26, 2024

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