BRAGG et al v. MALKIN et al

Filing 10

MEMORANDUM AND ORDER that Plaintiffs' request to proceed in forma pauperis is hereby DENIED, without prejudice; that the Clerk of the Court shall administratively terminate this case, without filing the complaint or assessing a filing fee; that the Clerk of the Court shall send each Plaintiff a blank form application to proceed in forma pauperis; that if Plaintiffs wish to reopen this case, Plaintiffs shall so notify the Court, in writing, within 30 days of the date of entry of this Order; that upon receipt of a writing from Plaintiffs stating that they wish to reopen this case, and either a complete in forma pauperis application from each Plaintiff, or payment of the filing and administrative fees within the time allotted by this Cou rt, the Clerk of the Court will be directed to reopen this case; that the Clerk of the Court shall serve a copy of this Order upon Plaintiffs by regular U.S. mail, and close this file accordingly. Signed by Judge Michael A. Shipp on 5/14/2014. (jjc)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

BRIAN KEITH BRAGG, et al.,
Civil Action No. 13-4899 (MAS)
Plaintiffs,
MEMORANDUM AND ORDER

V.

STANLEY MALKIN, et al.,
Defendants.

Plaintiffs, Brian Keith Bragg, Michael Simpson, Paul Wilkins, and Damien Free, inmates
confined at the Mercer County Correction Center in Trenton, New Jersey at the time they
submitted this Complaint for filing, 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 Prison
Litigation Reform Act of 1995 (the "Act"), which amends 28 U.S.C. § 1915, establishes certain
financial requirements for prisoners who are attempting to bring a civil action in forma pauperis.
Under the Act, a prisoner bringing 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 for the six-month period immediately preceding the filing of his
complaint. 28 U.S.C. § 1915(a)(2). The prisoner must obtain this statement from the appropriate
official of each prison at which he was or is confined. Id.
The entire fee to be paid in advance of filing a civil complaint is $400. That fee includes
a filing fee of $350 plus an administrative fee of $50, for a total of $400. A prisoner who is

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granted in forma pauperis status will, instead, be assessed a filing fee of $350 and will not be
responsible for the $50 administrative fee. If in forma pauperis status is denied, the prisoner
must pay the full $400, including the $350 filing fee and the $50 administrative fee, before the
complaint will be filed.
If the prisoner is granted in forma pauperis status, the prisoner must pay the full amount
of the $350 filing fee as follows. 28 U.S.C. § 1915(b)(l). 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, payment equal to 20% of the preceding month's income credited to the prisoner's
account. 28 U.S.C. § 1915(b)(2).
Plaintiffs may not have known when they submitted this complaint that they 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 is: (1) 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. 28 U.S.C. § 1915(e)(2)(B). If the Court dismisses the case for any of
these reasons, the Act does not permit the prisoner to get his filing fee back.
Further, if the prisoner has, on three or more prior occasions while incarcerated, brought
an action or appeal in a court that was dismissed on any of the grounds listed above, 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, Plaintiffs failed to each submit a complete in forma pauperis application as
required by 28 U.S.C. § 1915(a)(1), (2), including a certified account statement as to each of
them. In particular, Plaintiffs failed to submit their separate six-month prison account statements

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as to each of them, with an account certification signed by an authorized prison official, as well
as a signed affidavit of indigency as to each Plaintiff.
THEREFORE, it is on this day of May, 2014;
ORDERED that Plaintiffs' request to proceed in forma pauperis is hereby DENIED,
without prejudice; and it is further
ORDERED that the Clerk of the Court shall administratively terminate this case, without
filing the complaint or assessing a filing fee; Plaintiffs are informed that administrative
termination is not a "dismissal" for purposes of the statute of limitations, and that if the case is
reopened, it is not subject to the statute of limitations time bar if it was originally filed timely,

see Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 84 n.2 (2013) (describing
prisoner mailbox rule generally); Dasilva v. Sheriffs Dept., 413 F. App'x 498, 502 (3rd Cir.
2011) ("[The] statute of limitations is met when a complaint is submitted to the clerk before the
statute runs .... "); and it is further
ORDERED that the Clerk of the Court shall send each Plaintiff a blank form application
to proceed in forma pauperis; and it is further
ORDERED that if Plaintiffs wish to reopen this case, Plaintiffs shall so notify the Court,
in writing addressed to the Clerk of the Court, Clarkson S. Fisher Building & U.S. Courthouse,
402 East State Street, Room 2020, Trenton, New Jersey 08608, within 30 days of the date of
entry of this Order; Plaintiffs' writing shall include either (1) a complete, signed in forma

pauperis application, including a certified six-month prison account statement as to each
Plaintiff, or (2) the $400 fee including the $350 filing fee plus the $50 administrative fee; and it
is further

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ORDERED that upon receipt of a writing from Plaintiffs stating that they wish to reopen
this case, and either a complete in forma pauperis application from each Plaintiff, or payment of
the filing and administrative fees within the time allotted by this Court, the Clerk of the Court
will be directed to reopen this case; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Order upon Plaintiffs by
regular U.S. mail, and close this file accordingly.

United States District Judge

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