JULY v. D'ILIO et al

Filing 2

MEMORANDUM and ORDER Denying Plaintiff's application to proceed in forma pauperis; Administratively terminating this action; further Ordering that if Plaintiff wishes to reopen this case, he shall so notify the Court, inwriting, 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 proper certified six-month prison account statement, or (2) the $400 fee. Signed by Judge Michael A. Shipp on 8/16/2016. (eaj)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SHAWN JULY,
Civil Action No. 16-4568 (MAS) (LHG)
Plaintiff,

v.

MEMORANDUM AND ORDER

STEPHEN D'ILIO, et al.,
Defendants.

Plaintiff Shawn July, a prisoner currently confined at the New Jersey State Prison 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 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 pauper is 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
informa pauperis status will, instead, be assessed a filing fee of $350 and will not be responsible

for the $50 administrative fee. If in forma pauper is 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 pauper is 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.
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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. § 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.
In this action, Plaintiff fails to submit a complete in forma pauperis application as required
by 28 U.S.C. § 1915(a). Specifically, Plaintiff fails to submit a proper six-month prison account
statement. Plaintiff submits an account statement dating from November 14, 2015 to May 11,
2016, while the Complaint was filed on July 28, 2016, and dated July 18, 2016. This does not
satisfy the statutory requirement that Plaintiff must submit a six-month statement for the period
immediately preceding the filing of the Complaint.

Assuming Plaintiff actually mailed his

Complaint on July 18, 2016, Plaintiff was required to submit an account statement dating from
January 18, 2016 to July 18, 2016.

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IT IS therefore on

this~ day of__.~~_.;_.~~---------' 2016,

ORDERED that Plaintiffs request to proceed in forma pauperis is hereby DENIED
WITHOUT PREJUDICE; it is further
ORDERED that the Clerk 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 (3rd Cir. 2011)
("[The] statute of limitations is met when a complaint is submitted to the clerk before the statute
runs[.]"); it is further
ORDERED that the Clerk 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; 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, 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 proper certified six-month prison account statement, or (2) the $400 fee including the
$350 filing fee plus the $50 administrative fee; 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 will be directed to reopen this
case; and it is further

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ORDERED that the Clerk shall serve a copy of this Order upon Plaintiff by regular mail.

Mic~.S.D.J.

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