UNITED STATES DISTRICT COURT CLOSED

DISTRICT OF NEW JERSEY

MAURICE GAY, :

: Civil Action No. 10-3983 (FSH)

Plaintiff, :

:

v. : MEMORANDUM OPINION

:

WAKEFERN FOOD CORPORATION, :

:

Defendant. :

APPEARANCES:

Plaintiff pro se

Maurice Gay

Trenton State Prison

P.O. Box 861

Trenton, NJ 08625

HOCHBERG, District Judge

Plaintiff Maurice Gay, a prisoner confined at Trenton 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.

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 1

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 full $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) seeks monetary relief against a defendant who is

 Plaintiff submitted an out-of-date form application for 1

leave to proceed in forma pauperis which states that the filing

fee is $150. The filing fee is now $350.

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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 six-months 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).

To the extent Plaintiff asserts that prison officials have

refused to provide the certified account statement, any such

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assertion must be supported by an affidavit detailing the

circumstances of Plaintiff’s request for a certified account

statement and the prison 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.

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.2

An appropriate Order will be entered.

 /s/ Faith S. Hochberg 

Faith S. Hochberg

United States District Judge

Dated: August 12, 2010

 Such an administrative termination is not a “dismissal” 2

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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