UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

 :

DAVID L. WOMACK, :

 :

Plaintiff, :

 :

v. :

 :

 :

NEW JERSEY, et al., :

 :

Defendants. :

 :

Civil No. 11-2884(JAP)

MEMORANDUM AND ORDER

Plaintiff, currently confined at New Jersey State Prison in

Trenton, New Jersey, seeks to bring a civil action in forma

pauperis, without prepayment of fees or security, asserting claims 1

pursuant to 42 U.S.C. § 1983. The Prison Litigation Reform Act of

1995, Pub. L. No. 104-134, 110 Stat. 1321 (April 26, 1996) (the

“Act”), 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 Act, a prisoner bringing 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 for the 6-month

period immediately preceding the filing of his complaint. 28

 Suits brought in forma pauperis are governed by 28 U.S.C. 1

§ 1915.

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U.S.C. § 1915(a)(2). The prisoner must obtain this 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. 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 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 is: (1) 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). If the Court dismisses the

case for any of these reasons, the Act does not permit the prisoner

to get his filing fee back. 

If the prisoner has, on three or more prior occasions while

incarcerated, brought an action or appeal in a court that was

dismissed on any of the grounds listed above, he cannot bring

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another action in forma pauperis unless he is in imminent danger of

serious physical injury. 28 U.S.C. § 1915(g).

In this case, Plaintiff failed to submit a complete in forma

pauperis application as required by 28 U.S.C. § 1915(a)(1), (2). 

While Plaintiff did submit a handwritten “Motion to Proceed In

Forma Pauperis,” that motion is insufficient to comply with the

statute since the account statement provided did not reflect the

full six-month period, nor was it certified by an official of the

institution, pursuant to 28 U.S.C. § 1915(a)(2).

THEREFORE, it is on this 22nd day of August, 2011;

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

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

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ORDERED that the Clerk of the Court shall send Plaintiff a

blank form application to proceed in forma pauperis; and it is

further

ORDERED that if Plaintiff wishes to reopen this case, he shall

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

Court, Clarkson S. Fisher U.S. Courthouse and Federal Bldg., 402

East State Street, Trenton, New Jersey 08608, within 30 days of the

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

either (1) a complete, signed in forma pauperis application,

including a certified six-month prison account statement, or (2)

the $350 filing fee; and it is further

ORDERED that upon receipt of a writing from Plaintiff stating

that he wishes to reopen this case, and either a complete in forma

pauperis application or filing fee within the time allotted by this

Court, the Clerk of the Court will be directed to reopen this case;

and it is finally

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

Order upon Plaintiff by regular U.S. mail.

/s/ JOEL A. PISANO 

Joel A. Pisano

United States District Judge

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