UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

PERRY FRANCIS MOTOLO, :

: Civil Action No. 11-2819 (RMB)

Plaintiff, :

:

v. : MEMORANDUM OPINION

:

FEDERAL BUREAU OF PRISONS, :

INC., et al., :

:

Defendants. :

APPEARANCES:

Plaintiff pro se

Perry Francis Motolo

F.C.I. Fort Dix

P.O. Box 2000

Fort Dix, NJ 08640

BUMB, District Judge

Plaintiff Perry Francis Motolo, a prisoner confined at the

Federal Correctional Institution at Fort Dix, New Jersey, seeks

to bring this civil action asserting violations of his

constitutional rights. More specifically, Plaintiff alleges that

his present confinement is unconstitutional because of various

flaws in his criminal prosecution.1 

1

 The Court notes that on February 4, 2008, Plaintiff

pleaded guilty to 27 counts of mail fraud, money laundering, tax

evasion, and other offenses, arising from a Ponzi scheme he

operated for ten years involving financial planning services. 

See United States v. Motolo, Crim. No. 06-0033 (N.D. Ind.). In

an amended judgment filed August 29, 2008, the trial court

imposed an aggregate sentence of 294 months. Plaintiff appealed,

arguing that the judgment was void and seeking immediate release. 

The United States Court of Appeals for the Seventh Circuit

dismissed the appeal for want of prosecution. See United States

v. Motolo, C.A. 08-2623 (7th Cir. Apr. 9, 2009). To date,

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Plaintiff does not state the jurisdictional basis for this

action, nor does he state what relief he seeks. The pleading

submitted here is denominated a “Private Administrative Remedy

Demand.” This Court construes this as a civil action for

declaratory relief.

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

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

Plaintiff has not filed a motion to vacate, set aside, or correct

the criminal judgement, pursuant to 28 U.S.C. § 2255, in the

sentencing court.

2

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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

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,

3

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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 either to prepay the $350

filing fee or 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). Accordingly, he has not satisfied the

requirements for paying the filing fee or proceeding in forma

pauperis in a civil action. Thus, this action will be

administratively terminated.2

2 This Court does not construe this action as one for a writ

of habeas corpus under 28 U.S.C. § 2241. Plaintiff has filed at

least three petitions for writ of habeas corpus pursuant to 28

U.S.C. § 2241, including one in this Court, all of which were

dismissed for lack of jurisdiction. See Motolo v. United States,

Civil No. 09-5340 (D.N.J.); Motolo v. United States, Civil No.

09-2403 (N.D. Cal.); Motolo v. United States, Civil No. 09-0691

(N.D.N.Y.).

Nevertheless, if this Court were to construe this action as

a petition for writ of habeas corpus under 28 U.S.C. § 2241, the

result would be the same. The filing fee for a petition for writ

of habeas corpus is $5.00. Pursuant to Local Civil Rule 54.3(a),

the filing fee is required to be paid at the time the petition is

presented for filing. Pursuant to Local Civil Rule 81.2(b),

whenever a prisoner submits a petition for writ of habeas and

seeks to proceed in forma pauperis, that petitioner must submit

(a) an affidavit setting forth information which establishes that

the petitioner is unable to pay the fees and costs of the

proceedings, and (b) a certification signed by an authorized

officer of the institution certifying (1) the amount presently on

4

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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.3

An appropriate Order will be entered.

s/Renée Marie Bumb 

Renée Marie Bumb

United States District Judge

Dated: September 26, 2011 

deposit in the prisoner’s prison account and, (2) the greatest

amount on deposit in the prisoners institutional account during

the six-month period prior to the date of the certification. If

the institutional account of the petitioner exceeds $200, the

petitioner shall not be considered eligible to proceed in forma

pauperis. Local Civil Rule 81.2(c). Here, Plaintiff did not

prepay the $5.00 filing fee for a habeas petition as required by

Local Civil Rule 54.3(a), nor did he submit an application for

leave to proceed in forma pauperis. Thus, he has not satisfied

the filing fee requirement for a habeas petition, either.

3 Such an administrative termination is not a “dismissal”

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).

5

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