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Civil Action No. 13-3969 (NLH)

MEMORANDUM AND ORDER













LUKE HAWKINS,









Plaintiff,

v.

KARL CAVENESS, et al.,







Defendants.









Case 1:13-cv-03969-NLH-KMW Document 3 Filed 07/10/13 Page 1 of 4 PageID: 17

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Plaintiff Luke Hawkins, a prisoner confined at Atlantic County Justice Facility, seeks to

bring this civil action in forma pauperis, 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.



The entire fee to be paid in advance of filing a civil complaint is $400. That fee includes

a filing fee of $350 plus an administrative fee of $50, for a total of $400. A prisoner who is

granted in forma pauperis status will, instead, be assessed a filing fee of $350 and will not be

Case 1:13-cv-03969-NLH-KMW Document 3 Filed 07/10/13 Page 2 of 4 PageID: 18

responsible for the $50 administrative fee. If in forma pauperis status is denied, the prisoner

must pay the full $400, including the $350 filing fee and the $50 administrative fee, before the

complaint will be filed.



If the prisoner is granted in forma pauperis status, the prisoner must pay the full amount

of the $350 filing fee as follows. 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 action, Plaintiff failed to submit a complete in forma pauperis application as

required by 28 U.S.C. § 1915(a)(1), (2), including a certified account statement. Specifically,

Plaintiff failed to submit a certified six month account statement.

THEREFORE, it is on this 9th day of July , 2013;

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Case 1:13-cv-03969-NLH-KMW Document 3 Filed 07/10/13 Page 3 of 4 PageID: 19



ORDERED that Plaintiff’s request to proceed in forma pauperis is hereby DENIED,

without prejudice; and it is further



ORDERED that the Clerk of the Court shall 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 if it was originally filed timely, see Jenkins v.

Superintendent of Laurel Highlands, 705 F.3d 80, 84 n.2 (2013) (describing prisoner mailbox

rule generally); Dasilva v. Sheriff's 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. 5/13)) to be used by

Plaintiff in any future application to proceed in forma pauperis; and it is further



ORDERED that if Plaintiff wishes to reopen this case, he shall so notify the Court, in

writing addressed to the Clerk of the Court, Mitchell H. Cohen Building & U.S. Courthouse, 4th

& Cooper Streets, Camden, NJ 08101, within 30 days of the date of entry of this Order;

Plaintiff’s writing shall include either (1) a complete, signed in forma pauperis application,

including a certified six-month prison account statement, or (2) the $400 fee including the $350

filing fee plus the $50 administrative 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 payment of the filing and

administrative fees within the time allotted by this Court, the Clerk of the Court will be directed

to reopen this case; and it is finally



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Case 1:13-cv-03969-NLH-KMW Document 3 Filed 07/10/13 Page 4 of 4 PageID: 20



ORDERED that the Clerk of the Court shall serve a copy of this Order upon Plaintiff by

regular U.S. mail.

































s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge

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