UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JOVITO STELL, :

: Civil Action No. 11-4562 (NLH)

Plaintiff, :

:

v. : MEMORANDUM OPINION

:

MICHAEL RODRIGUEZ, et al., :

:

Defendants. :

APPEARANCES:

Plaintiff pro se

Jovito Stell

F.C.I. Fairton

P.O. Box 420

Fairton, NJ 08320

HILLMAN, District Judge

Plaintiff Jovito Stell, a prisoner confined at the Federal

Correctional Institution at Fairton, New Jersey, seeks to bring

this civil action, asserting claims pursuant to 42 U.S.C. § 1983. 

Plaintiff has neither prepaid the $350 filing fee for a civil

action nor applied for leave to proceed in forma pauperis.

Civil actions brought in forma pauperis are governed by 28

U.S.C. § 1915. The Prison Litigation Reform Act of 1995, Pub. L.

Case 1:11-cv-04562-NLH-AMD Document 2 Filed 08/09/11 Page 1 of 5 PageID: 9
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

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

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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,

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.,

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42 Fed.Appx. 221 (10th Cir. 2002); Johnson v. United States, 79

Fed.Cl. 769 (2007).

The allegations of the Complaint do not suggest that

Plaintiff is in imminent danger of serious physical injury and

there is a serious question as to whether Plaintiff has chosen

the proper venue to litigate his claims.1

CONCLUSION

For the reasons set forth above, the Clerk of the Court will

be ordered to administratively terminate this action, without

 Indeed, the Court notes that the facts of the Complaint 1

relate to events that transpired entirely in Oklahoma and that

all defendants are located in Oklahoma. It is questionable

whether venue lies in this District. See 28 U.S.C. § 1391(b).

A civil action wherein jurisdiction is not founded

solely on diversity of citizenship may, except as

otherwise provided by law, be brought only in

(1) a judicial district where any defendant

resides, if all defendants reside in the same

State,

(2) a judicial district in which a substantial

part of the events or omissions giving rise to the

claim occurred, or a substantial part of property

that is the subject of the action is situated, or

(3) a judicial district in which any defendant may

be found, if there is no district in which the

action may otherwise be brought.

(emphases added).

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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.

At Camden, New Jersey /s/ Noel L. Hillman 

Noel L. Hillman

United States District Judge

Dated: August 9, 2011

 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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