HERNANDEZ v. STATE OF NEW JERSEY et al

Filing 2

MEMORANDUM and ORDER that Plaintiff's request to proceed in forma pauperis is Denied; Administratively terminating this case; Ordering that if Plaintiff wishes to reopen this case, he shall notify this Court in writing, within 30 days of the dat e of entry of this Order; Plaintiffs writing shall include either (1) a complete, signed in forma pauperis application, including acertified six-month prison account statement, or (2) the $400 fee. Signed by Judge Peter G. Sheridan on 10/9/2014. (eaj)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JAVIER OMAR HERNANDEZ,
Civil Action No. 14-5998 (PGS)
Plaintiff,
v.

:

MEMORANDUM AND ORDER

STATE OF NEW JERSEY, et al.,
Defendants.

Plaintiff Javier Omar Hernandez, a prisoner currently confined at Somerset County Jail in

Somerville, 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 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 informa 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)(l). 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
granted in Jorma 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)(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, 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 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.

§ 19l5(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.
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). Plaintiff has not alleged that he is in imminent danger of serious physical

injury.
In this action, Plaintiff failed to submit a complete in forma pauperis application as
required by 28 U.S.C.

§

19 15(a). Specifically, though he submitted a certification from a prison

official, Plaintiff did not submit a six month prison account statement.
191 5(a)(2).

2

See 28 U.S.C.

§

______day

THEREFORE, it is on this

of

,

ORDERED that Plaintiff’s request to proceed in

2014;

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; Plaintiff is 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. Sheriff 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 Plaintiff the form entitled Affidavit of
Poverty and Account Certification (Civil Rights)(DNJ ProSe 007 A(Rev. 5/1 3)) to be used by
Plaintiff in any future application to proceed in forina pauperis: and it is further
ORDERED that if Plaintiff wishes to reopen this case, he 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, Trenton, NJ 08608, within 30 days of the date of entry of this Order; Plaintiff’s
writing shall include either (1) a complete, signed in forma

pauperis

application, including a

certified six-month prison account statement, or (2) the $400 fee including the $350 filing fee
plus the $50 administrative fee; and it is further
ORDERED that upon receipt of a writing from Plaintiff stating that he wishes to reopen
this case, and either a complete in forma

pauperis

3

application 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 finally
ORDERED that the Clerk of the Court shall serve a copy of this Order upon Plaintiff by
regular U.S. mail.

pI

WkAa

Peter G. Sheridan, U.S.D.J.

4