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Smart v. Borough of Magnolia

United States District Court, D. New Jersey

August 6, 2014

SALAHUDDIN SMART, Plaintiff,
v.
BOROUGH OF MAGNOLIA, et al. Defendants.

MEMORANDUM ORDER

ROBERT B. KUGLER, District Judge.

Plaintiff was a pretrial detainee at the Camden County Correctional Facility in Camden, New Jersey when he initially submitted this pro se civil rights action pursuant to 42 U.S.C. ยง 1983. On October 3, 2013, this matter was administratively terminated as plaintiff had not paid the filing fee nor submitted an application to proceed in forma pauperis. [1] Subsequently, plaintiff submitted an application to proceed in forma pauperis as a non-prisoner as he indicated to the Court that he was no longer in prison. Nevertheless, before the Court ruled on this non-prisoner in forma pauperis application, plaintiff has recently indicated to the Court that he is now back in prison. ( See Dkt. No. 10.)

The Court will deny plaintiff's pending application to proceed in forma pauperis without prejudice. As plaintiff was incarcerated at the time he filed this civil action, and as plaintiff has now been re-incarcerated, this re-incarceration necessitates that he now file a prisoner in forma pauperis application, which includes a certified prisoner trust account statement before the Court can rule on his in forma pauperis application. Accord Smith v. Scott, No. 13-0613, 2014 WL 908423, at *2 (S.D. Ohio Mar. 7, 2014) (noting that while plaintiff filed his non-prisoner in forma pauperis application during his release from prison, his reincarceration necessitated the Magistrate Judge to order him to file a prisoner in forma pauperis application, including a certified trust account statement). The current pending application to proceed in forma pauperis does not include such a certified statement. Therefore, plaintiff's current pending non-prisoner application to proceed in forma pauperis will be denied without prejudice. Plaintiff will be ordered to submit a prisoner application to proceed in forma pauperis (or prepay the filing fee), which includes a certified six-month prisoner trust account statement within thirty days if he elects to continue this action.

Accordingly, IT IS on this 5th day of August, 2014,

ORDERED that the Clerk shall reopen this case;

ORDERED that plaintiff's application to proceed in forma pauperis (Dkt. No. 8.) is denied without prejudice; and it is further

ORDERED that the Clerk shall re-administratively terminate this 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 provided the original complaint was timely; and it is further

ORDERED that plaintiff may have the above entitled case reopened, if, within thirty (30) days of the date of the entry of this Order, Plaintiff either pre-pays the $350.00 filing fee[2] or submits to the Clerk a complete signed in forma pauperis application, including a certified six-month prison account statement; 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 will be directed to reopen this case; and it is further

ORDERED that the Clerk shall serve on plaintiff by regular U.S. mail this Memorandum Order and a blank form application to proceed in forma pauperis by a prisoner in a civil rights case.


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