NIZOLEK v. JOHNSON et al

Filing 2

MEMORANDUM AND ORDER that Plaintiff's request to proceed in forma pauperis is denied without prejudice. The Clerk shall administratively terminate this case. The Clerk shall send Plaintiff the form entitled Affidavit of Poverty and Account Certi fication (Civil Rights)(DNJ ProSe 007 A(Rev. 5/13)). If Plaintiff wishes to reopen the case, he shall notify the Court within 30 days of the date of entry of this Order. The Clerk shall serve this Order upon Plaintiff by regular mail. Signed by Judge Peter G. Sheridan on 12/6/2017. (mps)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

THOMAS M. NIZOLEK,
Civil Action No. 17-11789 (PGS)

Plaintiff,
v.

:

MEMORANDUM AND ORDER

JOHN JOHNSON, et al.,,
Defendants.
Plaintiff Thomas M. Nizolek, a prisoner currently confined at the Middlesex County
Adult
Correction Center in New Brunswick, New Jersey, seeks to bring this civil
action in forma
pauperis, without prepayment of fees or security, asserting claims pursuant 42
to
U.S.C.
The Prison Litigation Reform Act of 1995 (the “Act”), which amends 28 U.S.C.

§ 1983.

§ 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 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 prisone
r 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 prisone
r 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, Plaintiff failed to submit a complete informapauperis application. Plainti
ff
submits only an “account ledger,” without an affidavit of poverty, and the ledger
is not certified
by an authorized prison official. Furthermore, it is not at all clear that the account
ledger is a
complete accounting of Plaintiffs prison account for the six-month period immediately
preceding
the filing of the Complaint. This does not satisfy the statutory requirements. Plainti
ff must submit
a complete application, which must contain an affidavit of poverty, and a certified
six-month
prison account statement covering the period between May 11, 2017 and Novem
ber 11, 2017.

2

IT IS therefore on this

day of

IALJL(J_

,

2017,

ORDERED that Plaintiff’s 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 administrativ
e
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) (descri
bing
prisoner mailbox rule generally); Dasilva v. SherffsDep’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 Plainti in
ff 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;
Plaintiff’s writing shall include either (1) a complete, signed in forma pauper
is application,
including a proper certified six-month prison account statement, or (2) the $400 fee includi
ng the
$350 filing fee plus the $50 administrative fee; and it is further
ORDERED that the Clerk shall serve this Order upon Plaintiff by regular mail.

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

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