DOCKERY v. MERCER COUNTY CORRECTION CENTER et al

Filing 3

MEMORANDUM OPINION. Signed by Judge Peter G. Sheridan on 6/10/2013. (gxh)

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

VERNON DOCKERY,
Civil Action No. 13-2562 (PGS)
Plaintiff,
v.

:

MEMORANDUM OPINION

MERCER COUNTY CORRECTION
CENTER, et aL,
Defendants.

APPEARANCES:
Vernon Dockery
Mercer County Correction Center
P.O. Box 8068
Trenton, NJ 08650
Plaintiff p se

SHERIDAN, District Judge
Plaintiff Vernon Dockery, a prisoner confined at Mercer County Correction Center 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 j 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. IcL
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. § 191 5(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 maybe granted; or (3) seeks monetary relief against a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2)(B) (in forma pauperis actions). See also 28
U.S.C. § 1915A (dismissal of actions in which prisoner seeks redress from a governmental

2

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
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.

§

191 5(a)(1), (2), including a certified institutional account statement. See,

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 j 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 apply to re-open within 30 days.’

1

Error! Main Document Only.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).
3

An appropriate Order will be entered.

L
2
Peter G. Sheridan
United States District Judge
Dated:

4