PLANKER v. BARNES et al
Filing
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MEMORANDUM OPINION filed. Signed by Judge Anne E. Thompson on 3/11/2013. (eaj)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KEVIN PLANKER,
Plaintiff,
v.
JIM BARNES, et al.,
Defendants.
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Civil Action No. 13-1304 (AET)
MEMORANDUM OPINION
APPEARANCES:
Plaintiff pro se
Kevin Planker
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
THOMPSON, District Judge
Plaintiff Kevin Planker, a prisoner confined at New Jersey
State Prison in Trenton, 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.
The filing fee to commence a civil action is $350.
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, this Court may
permit an indigent plaintiff 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 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.
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
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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
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).
More specifically, Plaintiff failed to include the required
certified institutional account statement.
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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, Plaintiff’s application for
leave to proceed in forma pauperis will be denied without
prejudice and the Clerk of the Court will be ordered to
administratively terminate this action, without 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/Anne E. Thompson
Anne E. Thompson
United States District Judge
Dated: 03/11/13
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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