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Douglas E. Perry v. Peter E. Warshaw

May 16, 2011

DOUGLAS E. PERRY, PLAINTIFF,
v.
PETER E. WARSHAW, DEFENDANT.



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

MEMORANDUM AND ORDER

Plaintiff, currently confined at the Monmouth County Jail in Freehold, New Jersey, seeks to bring a civil action in forma pauperis,*fn1 without prepayment of fees or security, asserting claims pursuant to 42 U.S.C. § 1983. The Prison Litigation Reform Act of 1995 (the "Act"), which amends 28 U.S.C. § 1915, establishes certain financial requirements for prisoners who are attempting to bring a civil action 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 six-month period immediately preceding the filing of his complaint. 28 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 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 completed in forma pauperis application as required by 28 U.S.C. § 1915(a)(1), (2). While Plaintiff has submitted a six-month account statement, the statement is not certified as required by 28 U.S.C. § 1915(a)(2).

Furthermore, Plaintiff submitted out-of-date forms which incorrectly state that the filing fee is $250, and which contain language that indicates that withdrawals will be made from his institutional account until the $250 filing fee is paid. In fact, the filing fee is now $350 and, if Plaintiff is granted leave to proceed in forma pauperis, this Court will assess the full $350 filing fee and withdrawals will be made from Plaintiff's institutional account until the $350 filing fee has been paid in full.

THEREFORE, it is on this 16th day of May , 2011;

ORDERED that Plaintiff's application to proceed in forma pauperis is hereby DENIED, without ...


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