RAMIREZ v. RUTGERS BIOMEDICAL HEALTH SCIENCES et al

Filing 2

MEMORANDUM and ORDER Denying Plaintiff's request to proceed in forma pauperis; Administratively terminating this case; Order if Plaintiff wishes to reopen this case he shall notify the Court, in writing within 30 days of the date of entry of this Order; Plaintiffs writing shall include the $400 fee. Signed by Judge Peter G. Sheridan on 12/5/2016. (eaj)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RIGOBERTO RAMIREZ,
Civil Action No. 16-8689 (PGS)
Plaintiff,
v.

MEMORANDUM AND ORDER

RUTGERS BIOLMEDICAL HEALTH
SERVICES, et al.,
Defendants.

Plaintiff Rigoberto Ramirez, a prisoner currently confined at the Adult Diagnostic and
Treatment Center in Avenel, New Jersey, seeks to bring this civil action informa pauperis, without
prepayment of fees or security, asserting claims pursuant to 42 U.S.C.
Litigation Reform Act of 1995 (the “Act”), which amends 28 U.S.C.

§ 1983. The Prison

§ 1915, establishes certain

financial requirements for prisoners who are attempting to bring a civil action informapauperis.
Under the Act, a prisoner bringing a civil action informapauperis 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.

§ 191 5(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
informapauperis status will, instead, be assessed a filing fee of $350 and will not be responsible

for the $50 administrative fee. If informapauperis 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 informapauperis 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.

§ 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, the six-month prison account statement submitted by Plaintiff shows that he
had an income of$ 1,672.20 in the six months covered by the account statement. As such, Plaintiff
had an income in excess of an average of $200 a month during that time period. This indicates
that Plaintiff had the financial means to pay the filing fee. In Shahin v. Sec. ofDel., 532 F. App’x
123, 124 (3d Cir. 2013), the Third Circuit upheld an TFP denial by the district court, even when
the plaintiff showed that she only had a monthly income of $95 from self-employment. Because
the plaintiff was provided, by her husband, “with food, clothing, shelter, paying her medical and
travel expenses and even her business losses,” the Third Circuit reasoned, ‘requiring [plaintiff] to
pay her own litigation expenses, although requiring her to save for several months, would not

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deprive her of the ‘necessities of life.” Id. Here, Plaintiff’s income is more than twice of the
$95/month threshold established in Shahin, and Plaintiff is also similarly situated in that he has his
food, clothing, shelter, and medical expenses paid for by the prison. Like the plaintiff in Shahin,
Plaintiff may have to save up for two or three months in order to pay the filing fee, but such
requirement “would not deprive [him] of the ‘necessities of life.” 532 F. App’x at 124.
IT IS therefore on this

iD

of

,

2016,

ORDERED that Plaintiffs request to proceed informapauperis is hereby DENIED; 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. Sherffs 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 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 the $400 fee—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 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.

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

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