RUSH v. MONMOUTH COUNTY SHERIFF'S OFFICE et al

Filing 5

OPINION filed. Signed by Judge Joel A. Pisano on 5/23/2011. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

EDWARD R. RUSH,
Plaintiff,
v.
MONMOUTH COUNTY SHERIFF'S
OFFICE, et al.,
Defendants.

:
:
:
:
:
:
:
:
:
:
:
:

Civil No. 08-4657 (JAP)

MEMORANDUM OPINION

IT APPEARING THAT:
1. On September 18, 2008, the Clerk received from Plaintiff for filing a civil Complaint
seeking damages for violation of his constitutional rights under 42 U.S.C. § 1983 based on an
alleged beating that occurred on September 25, 2006. Plaintiff also submitted an affidavit seeking
in forma pauperis status. The address Plaintiff provided to the Clerk was South Woods State
Prison in Bridgeton, New Jersey.
2. Plaintiff’s application to proceed in forma pauperis was incomplete because he did not
submit to the Clerk a certified copy of the trust fund account statement (or institutional equivalent)
for the six month period immediately preceding the filing of the complaint, obtained from the
appropriate official of each prison at which the prisoner is or was confined, as required by 28
U.S.C. § 1915(a)(2).
3. Because Plaintiff did not prepay the $350.00 filing fee and his application to proceed in
forma pauperis was incomplete, by Order filed November 12, 2008, this Court denied the
application to proceed in forma pauperis without prejudice and administratively terminated the

case, subject to reopening if, within 30 days of the date of the entry of the Order, Plaintiff either
pre-paid the $350.00 filing fee or submitted to the Clerk a certified copy of the trust fund account
statement (or institutional equivalent) for the six month period immediately preceding the filing of
the complaint, obtained from the appropriate official of each prison at which the prisoner is or was
confined, as required by 28 U.S.C. § 1915(a).
4. On November 12, 2008, the Clerk mailed the Order to Plaintiff at South Woods State
Prison, the address he provided to the Clerk. On November 24, 2008, the United States Postal
Service returned the envelope that was sent to Plaintiff to the Clerk as undeliverable/refused.
5. Plaintiff did not contact the Clerk in writing until August 10, 2010, when he sent a letter
dated July 21, 2010, which did not contain a docket number or caption. Plaintiff states in the
letter;
I’m writing you because of a case I had filed within the United
States District Court of New Jersey. I’ve been waiting to hear back
from the courts concerning my case. I was incarcerated at
Southwoods State Prison when I received my application to proceed
without prepayment of fees affidavit which I filled out on 9/03/08
and milled to . . . court. However I was released form custody on
January 5, 09 and was paroled to Maryland which I successfully
completed. I then never heard back from courts concerning this
matter until on 7/21/10 in which I called the court clerk concerning
this matter and was told my complaint had been dismissed. I do not
think its fair that my case was not given the chance to be heard in
court when I still suffer from injuries to this day. Your Honor I do
not understand why my case was closed without my notification or
my mothers whom had power of attorney at the time. I do not know
what it was I had to do or did not do to cause the dismissal of my
case. I am asking you to reopen my case and give me the
opportunity to do what is needed to seek judgement on my behalf
now that I am no longer incarcerated and have a stable address
where I can receive mail and respond to it properly.
(Docket Entry #4, pp. 1-2.) Plaintiff provided his address as 190A Sawmill Road, Brick, NJ.

2

6. This Court construes Plaintiff’s letter as a request to file the Complaint nunc pro tunc.
7. Local Civil Rule 10.1(a) requires the initial pleading shall state the street and post
office address of each named party. See Local Civil R. 10.1(a). The rule further provides that
“unrepresented parties must advise the Court of any change in their . . . address within seven days .
. . by filing a notice of said change with the Clerk.” Id.
8. In this case, the Complaint indicated that Plaintiff’s address was South Woods State
Prison, but it did not include a prisoner number. When the Clerk mailed this Court’s November
12, 2008, Order to Plaintiff at South Woods State Prison, the envelope was returned by the United
States Postal Service to the Clerk as undeliverable. Although Plaintiff was released from South
Woods State Prison on January 5, 2009, and he moved to Maryland, Plaintiff did not notify the
Clerk of any change of address until he sent the July 21, 2010, letter, which is 22 months after he
mailed the Complaint and 18 months after he was released from South Woods State Prison.
9. Given that the statute of limitations on Plaintiff’s claim under 42 U.S.C. § 1983 expired
on September 26, 2008, eight days after the Clerk received Plaintiff’s Complaint, and Plaintiff has
provided no explanation for failing to apprise the Clerk of his numerous address changes during
the past two years, this Court will not allow Plaintiff to file the Complaint nunc pro tunc.
Moreover, Plaintiff has not to date prepaid the filing fee or submitted an affidavit of indigence
reflecting his present financial status.
10. An appropriate Order accompanies this Opinion.

/s/ JOEL A. PISANO
JOEL A. PISANO, U.S.D.J.
Dated: May 23, 2011
3