SALLY v. JOHNSON
MEMORANDUM and ORDER Denying Plaintiff's application to proceed in forma pauperis; Administratively terminating this action; Ordering the Clerk send Plaintiff a blank IFP form; Ordering if Plaintiff wishes to reopen this case, he shall notif y the Court, in writing 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, or (2) the $400 fee. Signed by Judge Brian R. Martinotti on 10/21/2016. (eaj)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RAYMOND E. SALLY,
Civil Action No. 15-7969-BRM-LHG
MEMORANDUM AND ORDER
THIS MATTER is opened to the Court by Plaintiff Raymond E. Sally (“Plaintiff”), a
convicted and sentenced prisoner currently confined at New Jersey State Prison in Trenton, New
Jersey, who seeks to bring this civil action in forma pauperis, without prepayment of fees or
security, asserting claims pursuant to 42 U.S.C. § 1983.
WHEREAS 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.
WHEREAS 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 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.
WHEREAS 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).
WHEREAS 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. § 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.
WHEREAS in this action, Plaintiff failed to submit a complete in forma pauperis
application as required by 28 U.S.C. § 1915(a). Specifically, though he submitted a certification
from a prison official, he did not provide a 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).
THEREFORE, it is on this 21st day of October, 2016;
ORDERED that Plaintiff’s 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; 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 (3d Cir. 2013)
(describing prisoner mailbox rule generally); Dasilva v. Sheriff's Dep’t, 413 F. App’x 498, 502 (3d
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. 5/13)) to be used by
Plaintiff in any future application to proceed in forma 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 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 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.
/s/ Brian R. Martinotti
Brian R. Martinotti
United State District Judge
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