Gatling v. Arquitt et al

Filing 4

ORDER DENYING without prejudice, Plaintiff's application to proceed in forma pauperis; DIRECTING the Clerk of Court to send to Plaintiff a new form motion to proceed in forma pauperis; DIRECTING the Clerk of Court to administratively terminate this case, without filing the Complaint or assessing a filing fee; ADVISING Plaintiff that if he wishes to reopen this action, he shall so notify the Court, in writing, no later than thirty days from the date of this Order; Plaintiff's writing s hall include either (1) a new motion to proceed in forma pauperis that includes a completed and signed Prison Certification, or (2) the $350.00 filing fee and $50.00 administrative fee ($400.00 total fees) and that upon Plaintiff' s submission of either (1) a new motion to proceed in forma pauperis that includes a completed and signed Prison Certification, or (2) the $350.00 filing fee and $50.00 administrative fee ($400.00 total fees), the Clerk of the Court shall re-open this case. Signed by William M. Skretny, United States District Judge on 8/23/2016. (MEAL) - CLERK TO FOLLOW UP -

PS

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
CHARLES GATLING,
Plaintiff,
ORDER
16-CV-0638WMS

-vE. ARQUITT, M. SHEEN, DOCTOR JANE
DOE, and SERGENT JOHN DOE,
Defendants.
___________________________________

INTRODUCTION
Pro se Plaintiff Charles Gatling, a prisoner confined at the Elmira Correctional
Facility, seeks to bring this civil action in forma pauperis, without prepayment of fees or
security, asserting claims pursuant to 42 U.S.C. § 1983.
DISCUSSION
Civil actions brought in forma pauperis are governed by 28 U.S.C. § 1915. The
Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (April 26,
1996) (the “PLRA”), which amends 28 U.S.C. § 1915, establishes certain financial
requirements for prisoners who are attempting to bring a civil action or file an appeal in
forma pauperis.
Under the PLRA, a prisoner seeking to bring a civil action in forma pauperis must
submit an affidavit or affirmation, including a statement of all assets and liabilities, 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(s) for the
six-month period immediately preceding the filing of his complaint.

28 U.S.C.

§ 1915(a)(2). The prisoner must obtain this certified statement from the appropriate
official of each correctional facility at which he was or is confined during such six-month
period. The Court, rather than require a prisoner to obtain a certified copy of his inmate
trust fund account statement, permits a prisoner to have prison officials complete and
sign a Prison Certification, which is included within the Court’s form motion to proceed
in forma pauperis.

The Prison Certification requires prison officials to set forth the

information noted in the inmate trust fund account statement as required pursuant to 28
U.S.C. § 1915(a)(2).
Even if the prisoner is granted in forma pauperis status, the prisoner must pay
the full amount of the $350.00 filing fee in installments. 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 an installment 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: (1) is 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) (in forma

pauperis actions). See also 28 U.S.C. § 1915A (dismissal of actions in which prisoner
seeks redress from a governmental defendant); 42 U.S.C. § 1997e (dismissal of
prisoner actions brought with respect to prison conditions). If the Court dismisses the

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case for any of these reasons, the PLRA does not suspend installment payments of the
filing fee or permit the prisoner to get back the filing fee, or any part of it, that has
already been paid.
If the prisoner has, on three or more prior occasions while incarcerated, brought
in federal court an action or appeal that was dismissed on the grounds that it was
frivolous or malicious, or that it failed to state a claim upon which relief may be granted,
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, Plaintiff has failed to submit an in forma pauperis application that
includes a completed and signed Prison Certification. 28 U.S.C. § 1915(a)(1)-(2); see,
e.g., Tyson v. Youth Ventures, L.L.C., 42 Fed.Appx. 221 (10th Cir. 2002); Johnson v.
United States, 79 Fed.Cl. 769 (2007).
CONCLUSION
For the reasons set forth above, Plaintiff’s application for leave to proceed in
forma pauperis will be denied without prejudice and the Clerk of Court will be ordered to
administratively terminate this action, without filing the Complaint or assessing a filing
fee. Plaintiff will be granted leave to move to re-open no later than thirty days from
the date of this Order. 1

1

Such an administrative termination is not a “dismissal” for purposes of the statute of limitations,
and if the case is reopened pursuant to the terms of this Order, it is not subject to the statute of limitations
time bar if it was originally filed timely. See Houston v. Lack, 487 U.S. 266 (1988) (prisoner mailbox rule);
McDowell v. Delaware State Police, 88 F.3d 188, 191 (3d Cir. 1996); see also Williams-Guice v. Board of
Education, 45 F.3d 161, 163 (7th Cir. 1995).

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ORDER
IT IS HEREBY ORDERED that Plaintiff’s application to proceed in forma
pauperis is hereby DENIED, without prejudice;
FURTHER, that the Clerk of Court is directed to send to Plaintiff a new form
motion to proceed in forma pauperis;
FURTHER, that the Clerk of Court shall administratively terminate this case,
without filing the Complaint or assessing a filing fee;
FURTHER, that if Plaintiff wishes to reopen this action, he shall so notify the
Court, in writing, no later than thirty days from the date of this Order; Plaintiff’s
writing shall include either (1) a new motion to proceed in forma pauperis that includes a
completed and signed Prison Certification, or (2) the $350.00 filing fee and $50.00
administrative fee ($400.00 total fees); 2
FURTHER, that upon Plaintiff’s submission of either (1) a new motion to proceed
in forma pauperis that includes a completed and signed Prison Certification, or (2) the
$350.00 filing fee and $50.00 administrative fee ($400.00 total fees), the Clerk of the
Court shall re-open this case.
SO ORDERED.
/s/William M. Skretny__
William M. Skretny
United States District Judge
DATED:

August 23, 2016
Buffalo, NY

2

Effective May 1, 2013, an additional administrative fee of $50.00 has been added to the total cost
of filing a civil lawsuit in District Court, which brings the total cost to $400.00. This additional
administrative fee does not apply to prisoners who are granted permission to proceed in forma
pauperis.P:\ECF Documents\16-0638_admin_closure.docx.

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