UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

LUIS DASTAS, :

: Civil Action No. 11-1473 (FLW)

Plaintiff, :

:

v. : MEMORANDUM OPINION

:

EDMOND C. CICCI, et al., :

:

Defendants. :

APPEARANCES:

Plaintiff pro se

Luis Dastas

MCACC

P.O. Box 266

New Brunswick, NJ 08903

WOLFSON, District Judge

Plaintiff Luis Dastas, a prisoner confined at Middlesex

County Adult Correctional Center in New Brunswick, 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.

Case 3:11-cv-01473-FLW-TJB Document 2 Filed 03/18/11 Page 1 of 4 PageID: 17
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

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

2

Case 3:11-cv-01473-FLW-TJB Document 2 Filed 03/18/11 Page 2 of 4 PageID: 18
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). The Court notes that Plaintiff has incurred at least

one such “strike.” See Dastas v. Department of Correction, Civil

No. 01-0598 (D.N.J.).

In this action, Plaintiff failed to submit a complete in

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

(2). 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, the six-month institutional account

statement submitted by Plaintiff was not certified by an

appropriate institution official.

3

Case 3:11-cv-01473-FLW-TJB Document 2 Filed 03/18/11 Page 3 of 4 PageID: 19
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/Freda L. Wolfson 

Freda L. Wolfson

United States District Judge

Dated: March 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).

4

Case 3:11-cv-01473-FLW-TJB Document 2 Filed 03/18/11 Page 4 of 4 PageID: 20