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Smart-El v. Ocean County Justice Facility

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


January 23, 2008

JY R. SMART-EL, PLAINTIFF,
v.
OCEAN COUNTY JUSTICE FACILITY, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Freda L. Wolfson United States District Judge

ORDER

Plaintiff seeks to file his Complaint in forma pauperis without prepayment of fees pursuant to 28 U.S.C. § 1915. Based on his affidavit of poverty, prison account statement, and the apparent absence of three dismissals within 28 U.S.C. § 1915(g), the Court finds that Plaintiff qualifies for prisoner in forma pauperis status.

IT IS therefore on this 18th day of January , 2008,

ORDERED that Plaintiff's application to proceed in forma pauperis is hereby granted; and it is further

ORDERED that the Clerk of the Court shall file the Complaint without prepayment of the filing fee; and it is further ORDERED that Plaintiff's claims against Ocean County Justice Facility are DISMISSED WITH PREJUDICE;*fn1 and it is further

ORDERED that Plaintiff's claims against Gary Merlin are DISMISSED WITHOUT PREJUDICE;*fn2 and it is further

ORDERED that Plaintiff's claims against Theodore Hutler are DISMISSED WITHOUT PREJUDICE;*fn3 and it is further

ORDERED that the Clerk shall terminate Ocean County Justice Facility, Gary Merlin and Theodore Hutler as Defendants in this action; and it is further

ORDERED that the Clerk shall add Captain Therien as a Defendant in this action, pursuant to the caption of the Complaint; and it is further

ORDERED that Plaintiff's allegations asserting violations of Plaintiff's constitutional rights as a result of Plaintiff's transfer from Atlantic County Justice Facility to Ocean County Justice Facility are DISMISSED WITH PREJUDICE for failure to state a claim upon which relief may be granted;*fn4 and it is further

ORDERED that Plaintiff's remaining claims against Defendants Hagen and Therien may proceed past the sua sponte dismissal stage; and it is further

ORDERED that, pursuant to 28 U.S.C. § 1915(d), the Clerk of the Court shall issue summons, and a United States marshal shall serve summons, together with copies of the complaint and this order, upon Defendants Hagen and Therien, with all costs of service advanced by the United States; and it is further

ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), Defendants Hagen and Therien shall file and serve a responsive pleading within the time specified by Fed. R. Civ. P. 12; and it is further

ORDERED that, pursuant to 28 U.S.C. § 1915(e)(1) and § 4(a) of Appendix H of the Local Civil Rules, the Clerk of the Court shall notify Plaintiff of the opportunity to apply in writing to the assigned judge for the appointment of pro bono counsel in accordance with the factors set forth in Tabron v. Grace, 6 F.3d 454 (3d Cir. 1997), which sets forth the requirements for eligibility for appointment of pro bono counsel (in this regard, Plaintiff is advised that such appointment is neither guaranteed nor automatic); and it is further

ORDERED that the Clerk of the Court shall enclose with such notice a copy of Appendix H and a form Application for Appointment of Pro Bono Counsel; and it is further

ORDERED that, if at any time Plaintiff seeks the appointment of pro bono counsel, pursuant to Fed. R. Civ. P. 5(a) and (d), Plaintiff shall: (1) serve a copy of the Application for Appointment of Pro Bono Counsel by regular mail upon each party at his last known address or, if the party is represented in this action by an attorney, upon the party's attorney at the attorney's address, and (2) file a Certificate of Service with the Application for Pro Bono Counsel; and it is further

ORDERED that, pursuant to 28 U.S.C. § 1915(b), the Clerk of the Court shall forward a copy of this order by regular mail to the Attorney General of the State of New Jersey and the warden of the place of Plaintiff's current confinement; and it is further

ORDERED that Plaintiff is assessed a filing fee of $350.00 which shall be deducted from his prison account pursuant to 28 U.S.C. § 1915(b)(2) in the manner set forth below; and it is further

ORDERED that, pursuant to 28 U.S.C. § 1915(b)(1)(A), Plaintiff is assessed an initial partial filing fee and, when funds exist, the agency having custody of Plaintiff shall deduct said initial fee from Plaintiff's prison account and forward it to the Clerk of the Court; and it is finally

ORDERED that, pursuant to 28 U.S.C. § 1915(b)(2), until the $350.00 filing fee is paid, each subsequent month that the amount in Plaintiff's prison account exceeds $10.00, the agency having custody of the plaintiff shall assess, deduct from Plaintiff's account, and forward to the Clerk of the Court payments equal to 20% of the preceding month's income credited to Plaintiff's prison account, with each payment referencing the docket number of this action.


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