UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

SHAWN SOUTHERLAND, :

: Civil Action No. 11-0670 (WJM)

Plaintiff, :

:

v. : MEMORANDUM AND ORDER

:

DIRECTOR OSCAR AVILES, :

et al., :

:

Defendants. : CLOSED

Plaintiff Shawn Southerland, a prisoner confined at Hudson

County 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. The Court notes that the

Plaintiff’s last name is incorrectly spelled on the docket.

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

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

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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).

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, the PLRA does not suspend installment

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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. Plaintiff’s sixmonth institutional account statement was not certified by an

Authorized Officer of the Institution as required by 28 U.S.C.

§ 1915(a)(2). 

IT IS THEREFORE on this 7th day of March, 2011,

ORDERED that the Clerk of the Court shall correct the docket

to reflect the fact that Plaintiff’s last name is spelled

“Southerland”; and it is further

ORDERED that Plaintiff’s application to proceed in forma

pauperis is hereby DENIED, without prejudice; and it is further

ORDERED that the Clerk of the Court shall administratively

terminate this case, without filing the Complaint or assessing a

filing fee; Plaintiff is informed that administrative termination

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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 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); and it is further

ORDERED that the Clerk of the Court shall supply to

Plaintiff a blank form Application, for use by a prisoner, to

Proceed In Forma Pauperis in a Civil Rights Case; and it is

further

ORDERED that if Plaintiff wishes to reopen this action, he

shall so notify the Court, in writing addressed to the Clerk of

the Court, Martin Luther King Building and U.S. Courthouse, 50

Walnut Street, Newark, New Jersey, 07101 within 30 days of the

date of entry of this Order; Plaintiff’s writing shall include

either (1) a complete in forma pauperis application, including an

affidavit of indigence and six-month prison account statement,

certified by the appropriate official of each prison at which the

prisoner is or was confined, or (2) the $350 filing fee; and it

is further

ORDERED that the Clerk of the Court shall close the file in

this matter; and it is further

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ORDERED that the Clerk of the Court shall serve a copy of

this Order upon Plaintiff by regular U.S. mail.

 s/William J. Martini

 

William J. Martini

United States District Judge

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