PENDLETON v. JUSTUS et al
MEMORANDUM AND ORDER that Plaintiff's request to proceed in forma pauperis is DENIED WITHOUT PREJUDICE. The Clerk shall ADMINISTRATIVELY TERMINATE this case and send Plaintiff certain forms. If Plaintiff wishes to reopen this case, he shall notify the Court, in writing, within 30 days from the date of entry of this Order Signed by Judge Freda L. Wolfson on 7/14/2017. (mmh)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 17-2695 (FLW)
MEMORANDUM AND ORDER
JUDGE LESLIE ANN JUSTUS, et al.,
This matter has been opened to the Court by Plaintiff’s filing of a Complaint pursuant to
42 U.S.C. § 1983 and an application to proceed in forma pauperis. 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
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)(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.
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, the account statement submitted by Plaintiff is not certified by the
appropriate prison official. For that reason, the Court will deny without prejudice Plaintiff’s IFP
application at this time.
THEREFORE, it is on this 14th day of July, 2017;
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 Dept., 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 a blank form 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 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 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/Freda L. Wolfson
Freda L. Wolfson
United States District Judge
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