Opinion
Civ. No. 14-4853 (NLH)
05-15-2015
OREADER CALLAWAY, Plaintiff, v. CUMBERLAND COUNTY SHERIFF DEPARTMENT, et al., Defendants.
APPEARANCES: Oreader Callaway, #934609/109763-B New Jersey State Prison P.O. Box 861 Trenton, NJ 08625 Plaintiff Pro se
OPINION APPEARANCES:
Oreader Callaway, #934609/109763-B
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
Plaintiff Pro se
HILLMAN, District Judge
Plaintiff Oreader Callaway, a prisoner presently confined at the New Jersey State Prison in Trenton, New Jersey, seeks to bring this civil action in forma pauperis, without prepayment of fees or security, asserting claims pursuant to 42 U.S.C. § 1983. This case was previously administratively terminated for failure to submit a complete in forma pauperis application. At that time, Plaintiff was confined at the Cumberland County Correctional Facility.
On August 21, 2014, Plaintiff submitted a Notification to Reopen (ECF No. 4) which included a revised in forma pauperis application. Accordingly, the case was reopened on April 23, 2015 to consider Plaintiff's most recent application.
Pursuant to Local Civil Rule 54.3, the Clerk shall not be required to enter any suit, file any paper, issue any process, or render any other service for which a fee is prescribed, unless the fee is paid in advance. Under certain circumstances, however, this Court may permit an indigent plaintiff to proceed in forma pauperis.
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. A prisoner who is denied in forma pauperis status must pay the full $400, including the $350 filing fee and the $50 administrative fee, before the complaint will be filed.
Title 28 U.S.C. § 1915, establishes certain financial requirements for prisoners who are attempting to bring a civil action in forma pauperis. Under § 1915, a prisoner seeking to bring a civil action in forma pauperis must submit an affidavit, 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. Id.
If the prisoner is granted in forma pauperis status, the prisoner must pay the full amount of the $350 filing fee, in installments, 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 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 case for any of these reasons, § 1915 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).
For the second time, Plaintiff has failed to submit a complete in forma pauperis application as required by 28 U.S.C. § 1915(a)(1), (2). More specifically, he does not submit a certified institutional account statement. See, e.g., Hairston, Sr. v. Gronolsky, 348 F. App'x 716 (3d Cir. 2009) (affirming administrative termination of prisoner civil rights action for failure to comply with requirements of § 1915); Tyson v. Youth Ventures, L.L.C., 42 F. App'x 221 (10th Cir. 2002) (affirming dismissal without prejudice of civil action where prisoner submitted only uncertified copy of institutional account statement); Johnson v. United States, 79 Fed.Cl. 769 (2007) (same). See also Rohn v. Johnston, 415 F. App'x 353, 354-55 (3d Cir. 2011) (affirming dismissal without prejudice of civil action where prisoner failed to submit the required affidavit of poverty).
Plaintiff submits a letter dated April 28, 2015 (ECF No. 5) in which he states that he submitted "an account statement, along with a Cumberland County Statement along with the reason why no affidavit to support account statement was available, because the one person who was able for varification [sic] stated in September of 2013 that she was unable to provide [him] with a statement[.]" (Letter from Pl. 2, Apr. 28, 2015, ECF No. 5). The Court construes this language as an assertion that Plaintiff attempted to have the account statement certified, but was refused.
In its previous Order denying Plaintiff's in forma pauperis application, the Court stated:
[t]o the extent Plaintiff asserts that correctional officials have refused to provide the certified account statement, any such assertion must be supported by an affidavit detailing the circumstances of Plaintiff's request for a certified institutional account statement and the correctional officials' refusal to comply, including the dates of such events and the names of the individuals involved.(Order 2, Aug. 7 2014, ECF No. 4). In his current application, Plaintiff merely alludes to the fact that his request for certification of the account statement from officials at the Cumberland County Correctional Facility was denied. Contrary to the instructions in the Court's August 7, 2014 Order, Plaintiff does not provide any details regarding the circumstances of his request or of the refusal. Accordingly, his in forma pauperis application is incomplete and will be denied.
Plaintiff is again instructed that, to the extent Plaintiff asserts that correctional officials have refused to provide the certified account statement, any such assertion must be supported by an affidavit detailing the circumstances of Plaintiff's request for a certified institutional account statement and the correctional officials' refusal to comply, including the dates of such events and the names of the individuals involved.
The allegations of the Complaint do not suggest that Plaintiff is in imminent danger of serious physical injury. See 28 U.S.C. § 1915(g).
CONCLUSION
For the reasons set forth above, the Clerk of the Court will be ordered to administratively terminate this action, without filing the Complaint or assessing a filing fee. Plaintiff will be granted leave to apply to re-open within 30 days. An appropriate Order will be entered.
Such an administrative termination is not a "dismissal" for purposes of the statute of limitations, and if the case is re-opened pursuant to the terms of the accompanying Order, it is not subject to the statute of limitations time bar if it was originally submitted timely. See Houston v. Lack, 487 U.S. 266 (1988) (prisoner mailbox rule); Papotto v. Hartford Life & Acc. Ins. Co., 731 F.3d 265, 275-76 (3d Cir. 2013) (collecting cases and explaining that a District Court retains jurisdiction over, and can re-open, administratively closed cases).
s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge
Dated: May 15, 2015
At Camden, New Jersey