UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

MAURICE GAY, :

: Civil Action No. 11-366 (MLC)

Plaintiff, :

:

v. : O P I N I O N

:

MR. BARTKOWSKI, :

:

Defendant. :

 :

APPEARANCES:

Maurice Gay, Plaintiff pro se

New Jersey State Prison, P.O. Box 861, Trenton, NJ 08625

COOPER, District Judge

Plaintiff, Maurice Gay, a prisoner confined at New Jersey

State Prison, 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, which establishes certain financial requirements

for prisoners who are attempting to bring a civil action or file

an appeal in forma pauperis. A prisoner seeking to bring a civil

action in forma pauperis 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(s) for the six-month period immediately preceding the

filing of his complaint. 28 U.S.C. § 1915(a)(2). The prisoner

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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).

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 28 U.S.C. § 1915A (dismissal of actions in which

prisoner seeks redress from governmental defendant); 42 U.S.C.

§ 1997e (dismissal of prisoner actions brought as to prison

conditions). If the Court dismisses the case for any of these

reasons, installment payments of the filing fee are not suspended

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and the prisoner is not permitted 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 institutional 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). In

addition, Plaintiff used an out-of-date application, which

incorrectly states that the filing fee is $150. The filing fee

is $350. 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 administratively

terminate this action, without filing the complaint or assessing

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a filing fee. Plaintiff will be granted leave to move to re-open

within 30 days.1

An appropriate Order will be entered.

 s/ Mary L. Cooper 

MARY L. COOPER

 United States District Judge

Dated: March 25, 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. Del. State Police, 88

F.3d 188, 191 (3d Cir. 1996); see also Williams-Guice v. Board of

Educ., 45 F.3d 161, 163 (7th Cir. 1995).

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