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Anthony J. Walters v. Director: Al Bosher

September 9, 2011

ANTHONY J. WALTERS, PLAINTIFF,
v.
DIRECTOR: AL BOSHER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kugler, District Judge

NOT FOR PUBLICATION

OPINION

1. On March 22, 2010, Plaintiff, a prisoner, submitted to the Clerk for filing a civil Complaint and affidavit seeking to proceed in forma pauperis.

2. By Order entered April 1, 2010, this Court denied his application to proceed in forma pauperis without prejudice. The application to proceed in forma pauperis was incomplete because Plaintiff did not submit to the Clerk a certified copy of the trust fund account statement (or institutional equivalent) for the six month period immediately preceding the filing of the complaint, obtained from the appropriate official of each prison at which the prisoner is or was confined, as required by 28 U.S.C. § 1915(a)(2). The Order informed Plaintiff that, if he submitted the required account statement within 30 days, then the Court would reopen the file and entertain the renewed application. The Order warned Plaintiff that, if this Court granted permission to file the complaint in forma pauperis, then the Court is required to assess the $350.00 filing fee against the prisoner and collect the fee by directing the agency having custody of the prisoner to deduct installment payments from the prisoner's prison account equal to 20% of the preceding month's income credited to the account for each month that the balance of the account exceeds $10.00. See 28 U.S.C. § 1915(b).

3. Plaintiff thereafter timely submitted his prison account statement.

4. By Order entered January 26, 2011, this Court granted the application to proceed in forma pauperis, directed the New Jersey Department of Corrections to deduct the filing fee in monthly installments from Plaintiff's prison trust account until the $350.00 fee was paid. The Order also dismissed the Complaint for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B).

5. On August 29, 2011, Plaintiff filed a motion asking this Court to release him from the burden of paying the filing fee, which creates a hardship and violates the Eighth Amendment of the United States Constitution. (Dkt. 11.) Plaintiff asserts that, as a result of this and other deductions from his prison trust account, he "cannot afford the basic necessities such, as, buying toothpaste, personal hygiene products, because of all the outstanding fines enforced upon him []while incarcerated." (Dkt. 11 at 2.)

6. The Prison Litigation Reform Act ("PLRA") provides:

(b)(1) Notwithstanding subsection (a), if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee. The court shall assess and, when funds exist, collect, as a partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the greater of--(A) the average monthly deposits to the prisoner's account; or

(B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal.

(2) After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.

(3) In no event shall the filing fee collected exceed the amount of fees permitted by statute for the commencement of a civil action or an appeal of a civil action or criminal judgment.

(4) In no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means ...


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