COOK v. THE UNITED STATES et al,

Filing 4

MEMORANDUM OPINION AND ORDER denying Plaintiffs application to proceed in forma pauperis; Administratively terminating this case; Ordering that administrative termination is not a dismissal for purposes of the statute of limitations, and that if th is § 1983 case is reopened pursuant to the terms of this Memorandum Opinion and Order, it is not thereby subject to the statute of limitations bar, provided the initial submission was timely; Granting Plaintiff's application for an extension of time to file his in forma pauperis; Denying Plaintiff's application to withdraw referral of this matter to the Magistrate Judge. Signed by Judge Anne E. Thompson on 5/15/2013. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ANTHONY COOK,
Plaintiff,
v.
THE UNITED STATES et al.,
Defendants.

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Civil Action No. 13-2559 (AET)

MEMORANDUM OPINION
AND ORDER

It appearing that:
1. Plaintiff Anthony Cook (“Plaintiff”) submitted for filing a document executed on a
civil complaint form. See Docket Entry No. 1. Plaintiff, however, did not submit the applicable
filing fee or his application to proceed in this matter in forma pauperis.1 See id. Moreover, the
document Plaintiff submitted does not assert Plaintiff’s challenges; rather, in this document, he
requests an extension of time to plead his claims. See id.
2. The Clerk will not file a civil rights complaint unless the person seeking relief pays the
entire applicable filing fee in advance or the person applies for and is granted in forma pauperis,
status pursuant to 28 U.S.C. § 1915. See Local Civil R. 5.1(f). The filing fee for a civil rights
complaint is $350.00. See 28 U.S.C. § 1914(a). If a prisoner seeks permission to file a civil
rights complaint in forma pauperis, the Prison Litigation Reform Act, Pub. L. No. 104-134, §§

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Plaintiff later submitted an application seeking additional 45 days to submit his in
forma pauperis application. See Docket Entry No. 3. In that application, Plaintiff also requested
that the instant matter would not be referred to the Magistrate Judge assigned to this case, Hon.
Lois H. Goodman. See id.

801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996), requires the prisoner to file an affidavit
of poverty and a certified prison account statement for the six-month period immediately
preceding the filing of the complaint. See 28 U.S.C. § 1915(a)(2).
3. Plaintiff is a prisoner. He did not prepay the filing fee, and he failed to submit his
in forma pauperis application. No statement in his submission indicates that he is in danger of
imminent physical injury warranting grant of conditional in forma pauperis status.2
4. Since Plaintiff’s submission is silent as to his claims and the underlying factual
predicate, it fails to qualify as a pleading. Cf. Philip v. Deutsche Bank Nat'l Trust Co., No. 118960, 2012 U.S. Dist. LEXIS 85774, at *7 (S.D.N.Y. June 19, 2012) (“[T]he term ‘initial
pleading’ . . . mean[s] any pleading ‘containing sufficient information to enable the defendant to
intelligently ascertain the basis for [the action]”) (quoting Moltner v. Starbucks Coffee Co., No.
08-9257, 2009 U.S. Dist. LEXIS 15518 (S.D.N.Y. Feb. 27, 2009), aff'd, 624 F.3d 34 (2d Cir.
2010)). Rather, it is a de facto motion for extension of time to file a pleading. Cf. Animal Sci.
Prods. v. China Nat'l Metals & Minerals Imp. & Exp. Corp., 702 F. Supp. 2d 320, 372 (D.N.J.
2010) (noting “the axiomatic proposition that form shall not be elevated over substance, and thus
the actual content of the [document] – rather than its title/caption/headings – governs”) (citations
omitted), remanded on other grounds No. 10-2288, 2011 U.S. App. LEXIS 17046 (3d Cir. 2011).
However, the Court cannot exercise subject matter jurisdiction over a non-pleading. See, e.g.,
Lucente v. New Jersey, Civil Action No. 05-5186 (JBS) (N.J.D.), Docket Entry No. 6 (holding
that the court had no subject matter jurisdiction to entertain an action commenced upon receipt of

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Plaintiff merely stated that he was “prejudiced,” without any further explication. See
Docket Entry No. 1.
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a litigant’s submission that requested extension of time to file a pleading and appointment of
counsel to prepare such pleading since the court’s subject matter jurisdiction is limited to actual
pleadings).
5. However, to ensure that Plaintiff’s challenges, if time-sensitive, would not be rendered
untimely as a result of his failure to plead, the Court will direct the Clerk to administratively
terminate this matter while retaining its jurisdiction over this action for sixty days so to allow
Plaintiff an opportunity to state his claims.
IT IS, therefore on this 15th day of May, 2013,
ORDERED that Plaintiff's application to proceed in forma pauperis is denied without
prejudice; and it is further
ORDERED that the Clerk shall administratively terminate this action, without filing the
submission received and without assessing a filing fee, by making a new and separate entry on
the docket reading “CIVIL CASE TERMINATED”; and it is further
ORDERED that administrative termination is not a “dismissal” for purposes of the statute
of limitations, and that if this § 1983 case is reopened pursuant to the terms of this Memorandum
Opinion and Order, it is not thereby subject to the statute of limitations bar, provided the initial
submission was timely. See Houston v. Lack, 487 U.S. 266 (1988); McDowell v. Delaware State
Police, 88 F.3d 188, 191 (3d Cir. 1996); Williams-Guice v. Board of Education, 45 F.3d 161,
163 (7th Cir. 1995); and it is further
ORDERED that Plaintiff’s application for extension of time to file his in forma pauperis
application is granted; and it is further

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ORDERED that Plaintiff may have this matter reopened if, within forty five days from
the date of the entry of this Memorandum Opinion and Order, Plaintiff either pre-pays the
$350.00 filing fee or files with the Clerk Plaintiff’s affidavit of poverty and his certified prison
account statement for the six-month period preceding the filing of Plaintiff’s submission, as
required by 28 U.S.C. § 1915(a); and it is further
ORDERED that, in the event Plaintiff timely prepays the filing fee or submits his
affidavit of poverty and certified prison account statement, Plaintiff shall accompany the same
with a pleading stating his claims and the factual predicate in support of these claims; and it is
further
ORDERED that Plaintiff’s application to withdraw referral of this matter to the
Magistrate Judge is denied, as not in the interests of justice; and it is further
ORDERED that, in the event Plaintiff timely submits his pleading and in forma pauperis
application, the Court will enter an order directing the Clerk to restore this matter to the Court’s
active docket; and it is finally
ORDERED that the Clerk shall serve this Memorandum Opinion and Order upon
Plaintiff by regular U.S. mail, together with: (1) a blank in forma pauperis application for
incarcerated individuals seeking to file a civil complaint; and (2) a blank civil complaint form.

/s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.

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