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Darrin M. Gordon v. Ocean County Board of Chosen Freeholders

March 12, 2012

DARRIN M. GORDON, PLAINTIFF,
v.
OCEAN COUNTY BOARD OF CHOSEN FREEHOLDERS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Joel A. Pisano United States District Judge

MEMORANDUM OPINION & ORDER

This matter comes before the Court upon Plaintiff Darrin M. Gordon ("Plaintiff") submission of a civil complaint and accompanying application to prosecute this matter in forma pauperis and it appears that:

1. On September 30, 2010, the Clerk received from Plaintiff a package consisting of a civil complaint and an incomplete in forma pauperis application (which included only Plaintiff's affidavit of poverty); that submission gave rise to Gordon v. Berkeley Twp Police Dept. ("Gordon-I"), Civil Action No. 10-5061 (JAP) (D.N.J.). See Gordon-I, Docket Entry No. 1. The submission was docketed, as modified, on October 18, 2010, and assigned to the undersigned. See id.

2. On October 19, 2010, Plaintiff submitted another in forma pauperis application which, again, included only Plaintiff's affidavit of poverty. See id., Docket Entry No. 2.

3. On October 20, 2010, this Court issued an order in Gordon-I, stating, inter alia, as follows:

The Clerk will not file a civil rights complaint unless the person seeking relief pays the entire applicable filing fee in advance or the person applies for and is granted in forma pauperis, status pursuant to 28 U.S.C. § 1915. See Local Civil R. 5.1(f). The filing fee for a civil complaint is $350.00. See 28 U.S.C. § 1914(a). If a prisoner seeks permission to file a civil rights complaint in forma pauperis, the Prison Litigation Reform Act ("PLRA") requires the prisoner to file an affidavit of poverty and a certified prison account statement for the six-month period immediately preceding the filing of the complaint. See 28 U.S.C. § 1915(a)(2). The PLRA further provides that, if the prisoner is 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). In addition, if the prisoner is granted permission to proceed in forma pauperis, then the PLRA requires this Court to screen the complaint for dismissal and to dismiss any claim that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from an defendant who is immune from such relief.

Id., Docket Entry No. 3, at 1-2 (emphasis in original).

4. The Court, therefore, denied Plaintiff in forma pauperis status for the purposes of Gordon-I; such denial was without prejudice. See id. at 2-3. Specifically, the Court's order concluded with the following explanation to Plaintiff and directive to the Clerk:

ORDERED that the Clerk shall administratively terminate this action, without filing the Complaint or assessing a filing fee, . . . ; and it is further

ORDERED that Plaintiff may have [Gordon-I] reopened if, within 30 days of the date of the entry of this Order, Plaintiff either pre-pays the $350.00 filing fee or files with the Clerk his certified six-month prison account statement, as required by 28 U.S.C. § 1915(a); and it is finally

ORDERED that the Clerk shall serve this Order upon Plaintiff by regular U.S. mail, together with a blank in forma pauperis application for imprisoned individuals seeking to file a civil complaint [in order to facilitate Plaintiff's endeavors toward execution of a complete in forma pauperis application]. . . .

Id. at 3 (emphasis supplied).

5. On November 8, 2010, two and a half weeks after this Court's issuance of the above-quoted order, Plaintiff submitted his amended complaint in Gordon-I, see id., Docket Entry No. 4, together with his in forma pauperis application executed on the form provided to him by the Clerk, see id., Docket Entry No. 5, which expressly opened with the statement, "The Clerk will not file a civil complaint unless the person seeking relief pays the entire filing fee (currently $350.00) in advance or the person applies for and is granted in forma pauperis status . . . ." Id. at 1 (emphasis supplied). Plaintiff duly completed that official, Clerk-provided form, signed it and dated it. See id. at 3.

6. On June 27, 2011, this Court issued an order ("June Order") and accompanying opinion ("June Opinion") assessing Plaintiff's latest in forma pauperis application and screening Plaintiff's amended complaint for sua sponte dismissal. See id., Docket Entries Nos. 8 and 9. The Court's June Opinion stated, on its first page, as follows: "Following this Court's order directing submission of a proper IFP application, Plaintiff cured the deficiencies of his original submission. . . . Based on Plaintiff's affidavit of indigence and the absence of three qualifying dismissals within 28 U.S.C. § 1915(g), the Court will grant Plaintiff's application to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915(a) . . . ." Id., Docket Entry No. ...


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