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Wheeler v. Farrier

United States District Court, Third Circuit

August 28, 2013

MIKELL S. WHEELER, Plaintiff,
v.
BRUCE FARRIER, et al., Defendants.

MEMORANDUM AND ORDER

MICHAEL A. SHIPP, District Judge.

It appearing that:

1. On December 13, 2012, Plaintiff filed his initial complaint in this matter. (ECF No. 1.) His initial complaint requested criminal charges be filed against Defendants Bruce Farrier and Elizabeth Smith. ( Id. ) Plaintiff also submitted an incomplete in forma pauperis application. (ECF No.2.) Plaintiff failed to submit the required certified six month account statement with his application. See 28 U.S.C. § 1915(a)(2).

2. On March 13, 2013, this Court entered an order dismissing this case with prejudice because a "private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). (ECF No.4.)

3. On April 8, 2013, Plaintiff filed an "amended complaint, " pursuant to 42 U.S.C. § 1983, against the same defendants. (ECF No.5.)

THEREFORE, it is on this 28th day of August 2013;

ORDERED that the Clerk of the Court shall RE-OPEN the file in this matter to consider Plaintiffs amended complaint; and it is further

ORDERED that the Clerk of the Court is instructed to file the amended complaint (ECF No. 5) as the first entry in a new civil action; and it is further

ORDERED that the Clerk of the Court shall file this Order as the second entry in the new civil action; and it is further

ORDERED that the Clerk of the Court shall administratively terminate the new 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 Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 84 n.2 (3d Cir. 2013) (describing prisoner mailbox rule generally); Dasilva v. Sheriffs Dept., 413 F.App'x 498, 502 (3rd Cir. 2011) ("[The] statute of limitations is met when a complaint is submitted to the clerk before the statute runs.... ");and it is further

ORDERED that the Clerk of the Court shall send Plaintiff the form entitled "Affidavit of Poverty and Account Certification (Civil Rights)(DNJ-ProSe-007-A(Rev. 09/09)); and it is further

ORDERED that if Plaintiff wishes to reopen the new case, he shall so notify the Court, in writing, addressed to the Clerk of the Court, Clarkson S. Fisher Building & U.S. Courthouse, 402 East State Street, Trenton, N.J. 08608, within 30 days of the date of entry of this Order; Plaintiffs 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 the new case; and it is further

ORDERED shall serve a copy ofthis Order upon Plaintiff by regular U.S. mail; and it is further

ORDERED that the Clerk of the Court shall CLOSE the file in this matter.


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