ROUDABUSH v. BITENER et al

Filing 112

OPINION FILED. Signed by Judge Renee Marie Bumb on 4/21/16. (js)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

James L. Roudabush, Jr.,

:
:
Plaintiff,
:
v.
:
:
:
Lt. Bitener et al.,
:
:
Defendants.
:
_______________________________

CIV. ACTION NO. 15-3185(RMB)

OPINION
APPLIES TO BOTH ACTIONS

James L. Roudabush, Jr.

:
:
Plaintiff,
:
:
v.
:
:
Capt. Reyes et al.,
:
:
Defendants.
:
_______________________________

CIV. ACTION NO. 15-5521(RMB)

RENÉE MARIE BUMB, U.S. District Judge
I.

BACKGROUND
This Court found that Plaintiff, a prisoner who sought to

proceed in forma pauperis pursuant to 28 U.S.C. § 1915 in these Bivens
actions, had three strikes under the Prisoner Litigation Reform Act
of 1995 (“PLRA”). (Civil Action No. 15-3185, Opinion and Orders, ECF
No. 7, 9, 10; Civil Action No. 15-5521, Order, ECF No. 6). Plaintiff
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acquired the strikes in the following cases: Roudabush v. United
States, 11cv980(SDW-MCA)(D.N.J. July 14, 2011 and July 13, 2012)(all
defendants dismissed for failure to state a claim upon which relief
may be granted); Roudabush v. Johnson, 11cv7444(RMB)(D.N.J. Aug. 16,
2012)(dismissed for failure to state a claim); and Roudabush v.
Johnson, No. Civ.A. 705CV00691, 2006 WL 270020 (W.D. Va. Feb. 3,
2006)(all claims dismissed as frivolous and/or failure to state a
claim).
This Court, however, granted Plaintiff’s applications to
proceed in forma pauperis, because Plaintiff alleged he was in
imminent danger of serious physical injury at the time he filed the
complaint. (Civil Action No. 15-3185, Order, ECF No. 10; Civil Action
No. 15-5521, Order, ECF No. 6). Defendants challenged Plaintiff’s
assertion of imminent danger of serious physical injury. (Civil
Action 15-3185, Defs’ Response to Pl’s Allegation of Imminent Danger
of Serious Physical Injury Under 28 U.S.C. § 1915(g), ECF No. 22;
Civil Action 15-5521, ECF No. 11.)
On April 6, 2016, the Court held a hearing on the issue of whether
Plaintiff was in imminent danger of serious physical injury when he
filed these actions. (Civil Action No. 15-3185, Minute Entry, ECF
No. 107; Civil Action No. 15-5521, ECF No. 62).

For the reasons

stated on the record at the hearing, the Court found Plaintiff was

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not in imminent danger of serious physical injury on April 14, 2015
or on July 9, 2015. At the close of the hearing, Plaintiff asserted
a challenge to the finding that he had three strikes under the PLRA.
On April 18, 2016, he filed a “Motion to Grant Equitable Tolling/Apply
Mailbox Rule for Plaintiff’s 1915(g) Status” and a “Notice of Strike
Errors” in each of these cases. (Civil Action 15-3185(RMB), ECF Nos.
108, 109; Civil Action 15-5521(RMB), ECF Nos. 63, 63.)
In his motion for “equitable tolling” of his ”1915(g) status,”
Plaintiff asserts the Court should consider his Complaint to have
been filed in Civil Action No. 15-3185 as early as February 21, 2015
or at least by March 22, 2015, when he delivered the complaint to
prison

officials

for

mailing.

Plaintiff

contends

Defendants

prevented him from filing sooner by denying him the opportunity to
buy postage.
Even if the Court considered Plaintiff to have filed his
complaint in Civil Action No. 15-3185 any time between the dates of
February 21, 2015 and March 22, 2015, it would not change the result
of the Court’s imminent danger finding. Based on the record as a
whole, and the hearing held on April 6, 2016, Plaintiff was not in
imminent danger of serious physical injury at any time from when he
passed out on February 21, 2015 through July 9, 2015, when he filed
Civil Action No. 15-5521.

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In Plaintiff’s Notice of Strike Errors, he contends: (1)
Roudabush v. USA, 11cv980 (D.N.J. 2011) does not constitute a strike
because three claims survived initial screening: (2) Roudabush v.
NRDC, 12cv29 (D.N.J. 2012) is not a strike because it was dismissed
for lack of jurisdiction; (3) Roudabush v. Belk, (W.D.N.C. 2011),
is not strike because it was dismissed for venue; and (4) Roudabush
v. Johnson, 05cv691 (W.D. Va. 2006) was not a strike because it was
filed as a habeas corpus case, and although the court stated “it
should” be construed as a Section 1983 claim, it did not state that
“it would be.”
A dismissal of a prisoner’s civil action counts as a strike based
on three enumerated grounds in the statute, 28 U.S.C. § 1915(g). The
three grounds include that the action or appeal is (1) frivolous;
(2) malicious; or (3) fails to state a claim upon which relief may
be granted. 28 U.S.C. § 1915(e)(2)(B). A dismissal of an action (or
appeal) also counts as a strike if it is dismissed “pursuant to a
statutory provision or rule that is limited solely to dismissals for
such reasons, including (but not necessarily limited to) 28 U.S.C.
§§

1915A(b)(1),

1915(e)(2)(B)(i)

1915(e)(2)(B)(ii),

or

Rule

12(b)(6) of the Federal Rules of Civil Procedure.” Ball v. Famiglio,
726 F.3d 448, 463 (3d Cir. 2013).

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A dismissal may count as a strike if it is based on immunity
of the defendant(s), but only if the court explicitly and correctly
concludes that the complaint reveals the immunity of the defendant
on its face, and the court dismisses under Rule 12(b)(6) or expressly
states that the ground for the dismissal is frivolousness. Id. at
463. The entire action must be dismissed on the above grounds for
the prisoner to accrue a strike. Ball, 726 F.3d at 646. A dismissal
counts as a strike after it has been affirmed on appeal, “or the
opportunity to appeal has otherwise concluded.” Id. at 465. Courts
must also count a dismissal on a ground enumerated in 28 U.S.C. §
1915(g) as a strike, even though the dismissal remains pending on
appeal. Coleman v. Tollefson, 135 S.Ct. 1759, 1761 (2015).
A dismissal on one of the enumerated grounds in Section 1915(g)
counts as a strike “whether or not it’s with prejudice.” Paul v.
Marberry, 658 F.3d 702, 704 (7th Cir. 2011) (when a “plaintiff is
told to amend his . . . complaint and fails to do so, the proper ground
of dismissal is not want of prosecution but failure to state a claim,
one of the grounds in section 1915(g) for calling a strike against
a prisoner plaintiff.”); Cf Shapiro v. UJB Fin. Corp., 964 F.2d 272,
278 (3d Cir. 1992) (district court’s dismissal without prejudice to
amend the complaint had the “had the effect of dismissing the
improperly pleaded claims with prejudice” once the amendment period

5

expired); Hagan v. Rogers, 570 F.3d 146, 151 (3d Cir. 2009)
(“dismissal with leave to amend will be treated as a final order if
the Plaintiff has elected to stand upon the original complaint”);
Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2003) (“Because
Frederico has elected to stand on her original complaint rather than
amend or refile it, the order dismissing the complaint without
prejudice is final.”)
For the first strike, on July 14, 2011, in Roudabush v. United
States, 11cv980(SDW-MCA) (D.N.J.), the court dismissed all but three
of the claims for failure to state a claim upon which relief may be
granted. (Opinion and Order, ECF Nos. 14 and 15.) Certain of the
claims were dismissed without prejudice. (Id.) Plaintiff was given
an opportunity to amend the complaint on or before February 27, 2012,
to cure the deficiencies of those claims denied without prejudice,
but he failed to do so. (Order, ECF No. 74.) On July 13, 2012, the
court dismissed the claims against the remaining three defendants
for failure to state a claim upon which relief may be granted,
pursuant to Federal Rule of Civil Procedure 12(b)(6), and closed the
case. (Opinion and Order, ECF Nos. 97, 98.) The time to appeal has
expired. Therefore, all claims in the complaint were dismissed upon
the enumerated grounds in 28 U.S.C. § 1915(g), and the dismissal
counts as one strike.

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For the second strike, the court dismissed the complaint in
Roudabush

v.

Johnson,

11cv7444(RMB)

in

its

entirety,

without

prejudice, for failure to state a claim upon which relief may be
granted. (Opinion and Order, ECF Nos. 11, 12.) Instead of amending
the complaint, Plaintiff appealed the court’s order dismissing the
complaint. (ECF No. 13.) He therefore chose to stand on his original
complaint. The appeal was dismissed for lack of jurisdiction. (Order
of USCA, ECF No. 15.) Plaintiff never sought to amend the complaint,
and it is now, years later, too late to amend or perfect his appeal.
The dismissal counts as one strike.
The third strike occurred in Roudabush v. Johnson, No. Civ.A.
705CV00691, 2006 WL 270020 (W.D. Va. Feb. 3, 2006). The court
construed Plaintiff’s habeas petition as a civil rights action and
dismissed the case because Roudabush’s allegations were “either
frivolous or failed to state a claim upon which relief may be
granted,” pursuant to 28 U.S.C. § 1915A(b)(1). Although Roudabush
appealed the order dismissing the case, the appeal was dismissed for
failure to prosecute. Roudabush v. Johnson, No. 06-6280 (4th Cir.
April 7, 2006).1 The time to appeal this Order has expired. Therefore,

1

Available on PACER, the Public Access to Electronic Court Records,
using the Case Locator at www.pacer.gov.
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Plaintiff has three dismissals of civil actions on the grounds
enumerated in 28 U.S.C. § 1915(g). He has at least three strikes.2
III. CONCLUSION
Having found that Plaintiff has three strikes under 28 U.S.C.
§ 1915(g), and he was not in imminent danger of serious physical
injury when he filed these actions, the Court will revoke Plaintiff’s
IFP status, deny without prejudice Plaintiff’s pending motions, and
terminate these actions. Plaintiff may reopen the actions by paying
the civil and administrative filing fees of $400 in each of these
actions.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: April 21, 2016

2

Plaintiff has filed approximately 105 civil cases in the district
courts, and 46 appeals since the 1980s. See PACER at www.pacer.gov
It is likely that he has more than three dismissals that count as
strikes under 28 U.S.C. § 1915(g). See, Keener v. Pennsylvania Bd.
of Probation and Parole, 128 F.3d 143, 145 (3d Cir. 1997) (dismissals
for frivolousness that occurred prior to passage the PLRA’s three
strikes rule are included as strikes under section 1915(g)); Welch
v. Galie, 207 F.3d 130, 132 (2d Cir. 2000) (dismissal for failure
to state a claim that occurred prior to passage of the PLRA is a strike
under section 1915(g)); see also Coleman, 135 S.Ct. at 1761 (courts
must count a dismissal on a ground enumerated in 28 U.S.C. § 1915(g)
as a strike, even though the dismissal remains pending on appeal).
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