GAY v. VISTA

Filing 3

MEMORANDUM OPINION filed. Signed by Judge Peter G. Sheridan on 1/16/2012. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MAURICE GAY,
Plaintiff,
v.
VISTA,
Defendant.

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Civil Action No. 11-6755 (PGS)
MEMORANDUM OPINION

APPEARANCES:
Plaintiff pro se
Maurice Gay
Trenton State Prison
P.O. Box 861
Trenton, NJ 08625
SHERIDAN, District Judge
Plaintiff Maurice Gay, a prisoner confined at Trenton State
Prison in Trenton, New Jersey, seeks to bring this civil action
asserting claims pursuant to 42 U.S.C. § 1983.

Plaintiff has

neither prepaid the $350 filing fee nor submitted an application
for leave to proceed in forma pauperis.
Civil actions brought in forma pauperis are governed by 28
U.S.C. § 1915.

The Prison Litigation Reform Act of 1995, Pub. L.

No. 104-135, 110 Stat. 1321 (April 26, 1996) (the “PLRA”), which
amends 28 U.S.C. § 1915, establishes certain financial
requirements for prisoners who are attempting to bring a civil
action or file an appeal in forma pauperis.
Under the PLRA, a prisoner seeking to bring a civil action
in forma pauperis must submit an affidavit, including a statement

of all assets, 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
prison at which he was or is confined.

Id.

Even if the prisoner is granted in forma pauperis status,
the prisoner must pay the full amount of the $350 filing fee in
installments.

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).

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.
actions).

28 U.S.C. § 1915(e)(2)(B) (in forma pauperis

See also 28 U.S.C. § 1915A (dismissal of actions in

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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, the PLRA 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), including a certified account statement.

See, e.g., Tyson

v. Youth Ventures, L.L.C., 42 Fed.Appx. 221 (10th Cir. 2002);
Johnson v. United States, 79 Fed.Cl. 769 (2007).
The allegations of the Complaint do not suggest that
Plaintiff is in imminent danger of serious physical injury.
CONCLUSION
For the reasons set forth above, the Clerk of the Court will
be ordered to administratively terminate this action, without

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filing the complaint or assessing a filing fee.

Plaintiff will

be granted leave to move to re-open within 30 days.1
An appropriate Order will be entered.

s/Peter G. Sheridan
Peter G. Sheridan
United States District Judge
Dated: January 16, 2012

1

Such an administrative termination is not a “dismissal”
for purposes of the statute of limitations, and if the case is
reopened pursuant to the terms of the accompanying Order, it is
not subject to the statute of limitations time bar if it was
originally filed timely. See Houston v. Lack, 487 U.S. 266
(1988) (prisoner mailbox rule); McDowell v. Delaware State
Police, 88 F.3d 188, 191 (3d Cir. 1996); see also Williams-Guice
v. Board of Education, 45 F.3d 161, 163 (7th Cir. 1995).
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