UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ALVIN WYATT, :

: Civil Action No. 10-6514 (RBK)

Plaintiff, :

:

v. : MEMORANDUM OPINION

:

ATLANTIC COUNTY JUSTICE :

FACILITY, et al., :

:

Defendants. :

APPEARANCES:

Plaintiff pro se

Alvin Wyatt

Atlantic County Justice Facility

Mays Landing, NJ 08330

KUGLER, District Judge

Plaintiff Alvin Wyatt, a pre-trial detainee confined at

Atlantic County Justice Facility in Mays Landing, 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.

Civil actions brought in forma pauperis are governed by 28

U.S.C. § 1915. The Prison Litigation Reform Act of 1995, Pub. L.

No. 104-135, 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, including a statement

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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(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

prison at which he was or is confined. Id.

Even if the prisoner is granted in forma pauperis status,

the prisoner must pay the full amount of the $350 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).

Here, Plaintiff submitted an out-of-date form of Complaint

and Application for leave to proceed in forma pauperis, which

incorrectly states that the filing fee is only $120. Plaintiff

may not have known when he submitted his complaint that he must

pay the $350 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)

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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, 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 failed to submit a complete in

forma pauperis application as required by 28 U.S.C. § 1915(a)(1),

(2), including a certified account statement. 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). More

specifically, Plaintiff submitted an out-of-date form of

Complaint and Application for leave to proceed in forma pauperis,

which incorrectly states that the filing fee is $120. In

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addition, the institutional account statement is not certified by

an appropriate jail officer.

The allegations of the Complaint do not suggest that

Plaintiff is in imminent danger of serious physical injury.

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 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 move to re-open within 30 days.1

An appropriate Order will be entered.

s/Robert B. Kugler 

Robert B. Kugler

United States District Judge

Dated: January 18, 2011 

 Such an administrative termination is not a “dismissal” 1

for purposes of the statute of limitations, and if the case is

reopened pursuant to the terms of the accompanying 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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