DALTON v. JOHNSON et al

Filing 4

MEMORANDUM ORDER that the Clerk of the Court shall ADMINISTRATIVELY TERMINATE this case; that the Clerk of the Court shall forward Petitioner a blank form Application to Proceed In Forma Pauperis in a Habeas Corpus Case, for use by a prisoner; that the Clerk of the Court shall forward Petitioner a blank form Application to Proceed In Forma Pauperis in a Habeas Corpus Case, for use by a prisoner. Signed by Judge Brian R. Martinotti on 12/11/2017. (mmh)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
FREDERICK DALTON,

Civil Action No. 17-6025-BRM

Petitioner,
v.

MEMORANDUM ORDER

STEVEN JOHNSON, et al,
Respondents.

THIS MATTER is opened to the Court upon the filing of Petitioner Frederick Dalton’s
(“Petitioner”) amended petition for a writ of habeas corpus. (ECF No. 3.) For the reasons set forth
below, Plaintiff’s habeas petition shall be ADMINISTRATIVELY TERMINATED as Petitioner
has neither paid the appropriate filing fee nor filed a complete application to proceed in forma
pauperis sufficient to enable him to proceed without prepayment of that fee.
Petitioner filed his initial petition on or about August 11, 2017, and set forth his intention
to pay the applicable filing fee. (ECF No. 1.) Nevertheless, Petitioner neither paid the fee nor filed
an application to proceed in forma pauperis. On November 7, 2017, this Court entered an order
administratively terminating this matter because Petitioner failed to use the appropriate form as
required by the local civil rules, and because Petitioner failed to pay the applicable filing fee. (ECF
No. 2.) On December 6, 2017, Petitioner refiled his petition on the required form. (ECF No. 3.)
While Petitioner states in his amended petition “theFive [sic] Dollar . . . filing fee has been paid,”
the Court is not in receipt of the fee. (ECF No. 3 at 1.)
Pursuant to Local Civil Rule 54.3(a), a Petitioner may not proceed in this Court until he
has paid the appropriate filing fee, which, for petitions for a writ of habeas corpus, is $5.00.
Although Petitioner set forth his intention to pay the filing fee and subsequently claimed to have

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already paid the fee, this Court has yet to receive either the $5.00 fee or an application to proceed
in forma pauperis sufficient under Local Civil Rule 81.2(b) to permit him to proceed without
prepaying the filing fee. Therefore, this matter must be administratively terminated once again
until such time as Petitioner pays the fee. Accordingly,
IT IS on this 11th day of December 2017,
ORDERED that the Clerk of the Court shall ADMINISTRATIVELY TERMINATE
this case, without filing the complaint or assessing a filing fee; Petitioner 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's 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 forward Petitioner a blank form Application
to Proceed In Forma Pauperis in a Habeas Corpus Case, for use by a prisoner; and it is further
ORDERED that if Petitioner 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 a complete, signed in forma pauperis application or the $5 filing fee;
and it is further
ORDERED that upon receipt of a writing from Petitioner stating that he wishes to reopen
this case, accompanied by either a complete in forma pauperis application or the filing fee, the
Clerk of the Court will be directed to reopen this case; and it is finally

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

/s/ Brian R. Martinotti__________
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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