ROUDABUSH v. MCKOOL et al

Filing 6

MEMORANDUM AND ORDER Plaintiff's request to proceed IFP is DENIED. ORDERED Clerk shall administratively terminate this case. ORDERED Clerk shall serve a copy of this Memorandum and Order and a blank IFP application upon Plaintiff. Signed by Judge Renee Marie Bumb on 6/30/2015. (bdk, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

James L. Roudabush, Jr.

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Plaintiff,

v.

Lt. McKool et al.,
Defendants.

CIV. ACTION NO. 15-4233(RMB)

MEMORANDUM AND ORDER

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

BACKGROUND
Plaintiff, a prisoner confined at FCI Fort Dix, submitted an

application to proceed without prepayment of fees (in forma pauperis)
and a civil rights complaint to the U.S. District Court, District
of Columbia. (ECF No. 5.) In his Complaint, Plaintiff asserted two
claims, each with subparts. (Compl., ECF No. 1). First, Plaintiff
alleged

Defendants

violated

his

Fourteenth

Amendment

liberty

interest and the Privileges and Immunities Clause by placing him in
the special housing unit at FCI-Fort Dix on two occasions, November
7,

2013

in

protective

custody,

and

February

21,

2015

in

administrative detention, without a hearing. (ECF No. 1 at 2-3.)

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In the second part of this claim, Plaintiff alleged the
conditions of confinement in the special housing unit at FCI-Fort
Dix violated due process because the following conditions presented
an atypical and a significant hardship: counselors only visit once
a week; administrative remedy forms are provided only once a week;
only three sheets of paper and envelopes are allowed once a week;
request slips are only provided once a week; a lieutenant does not
visit the cells daily on each shift; although medical personnel make
daily rounds, it takes weeks to see a P.A. or doctor or receive
emergency treatment; exposure to extreme temperatures; no blankets;
only provided two books; denied all personal property for thirty
days; denied a watch; denied drink powder; personal hygiene items
are destroyed and must be replaced by prisoner; inmates in protective
custody are not allowed visitors; only one phone call allowed every
thirty days; no programs or activities are allowed; it takes up to
thirty days to access a law library computer; legal and special mail
may only be mailed once a week; housing in the “SHU” is done on a
discriminatory basis without a valid penological interest, and in
violation of Plaintiff’s right to freedom of association; the cells
are

overcrowded;

these

conditions

violate

F-BOP

rules

and

regulations and Plaintiff’s rights under the Fifth, Eighth, Ninth
and Fourteenth Amendments. (ECF No. 3-6.)

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In his second claim, Plaintiff alleged that on June 19, 2014,
C.O. Koeppen refused Plaintiff’s request to attend church services
and denied him the right to treatment and evaluation for chest and
arm pain. When another C.O. called for Plaintiff to receive medical
attention, P.A. Gibbs left Plaintiff lying on the floor for over 45
minutes without checking him.

Wen Plaintiff was evaluated, his

blood pressure was high, and his medical records reflected that he
had a blood pressure issue. These actions by Gibbs and Koeppen were
in retaliation for Plaintiff’s letters of complaints and lawsuits.
Plaintiff alleged this conduct violated his rights under the First,
Fifth, Eighth, Ninth and Fourteenth Amendments. (ECF No. 1 at 8.)
Plaintiff seeks monetary damages and injunctive relief. (Id. at 9.)
This case was transferred to this Court from the U.S. District
Court, District of Columbia on June 23, 2015, without a determination
of whether Plaintiff should be allowed to proceed without prepayment
of fees (in forma pauperis). (ECF No. 4 at 1.)
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 without
payment of the filing fee. Under the Act, a prisoner bringing a civil
action in forma pauperis must submit an affidavit, including a
statement of all assets, indicating that the prisoner is unable to

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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) (emphasis added).

A certified inmate trust

fund account statement is signed by a prison official. See e.g. Tyson
v. Youth Ventures L.L.C., 42 F. App’x 221 (10th Cir. 2002); Niblack
v. Community Educ. Centers, Inc., Civ. Action No. 08–4107(FSH), 2009
WL 704142, at *1 (D.N.J. Mar. 16, 2009) (IFP application was
incomplete because it did not contain signed certification from an
authorized officer of the institution.)
Here, Plaintiff submitted an affidavit of poverty and a report
showing deposits to his prison trust account statement for six
months. (ECF Nos. 2, 3.) Even if the report submitted is the
institutional equivalent of a prison trust account statement, it was
not certified by a prison official, as required by § 1915(a)(2).
Therefore, this case will be administratively terminated.
The PLRA also created a provision that if the prisoner has, on
three or more prior occasions while incarcerated, brought an action
or appeal in a court that was dismissed as frivolous or malicious
or for failure to state a claim upon which relief may be granted,
he cannot bring another action in forma pauperis unless he is in
imminent danger of serious physical injury. 28 U.S.C. § 1915(g); See

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Ball v. Famiglio, 726 F.3d 448, 456-66 (3d Cir. 2013) (discussing
three strikes provision). Plaintiff appears to have at least three
strikes under this provision. Plaintiff acquired three 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, at *2 n.3 (W.D. Va. Feb. 3,
2006) (all claims dismissed as frivolous and/or failure to state a
claim). In each of these cases, the time period for appeal has
expired.
The Court also finds that Plaintiff’s complaint does not
establish that he is in imminent danger of serious physical injury.
See 28 U.S.C. § 1915(g) (providing exception to three strikes
provision of PLRA). The alleged misconduct by defendants in refusing
to provide medical treatment when Plaintiff passed out in the SHU
occurred more than a year before Plaintiff filed the present
complaint and, therefore, does not present an imminent danger of
serious physical injury to Plaintiff. See Ball, 726 F.3d at 467 (“̔By
using the term ‘imminent,’ Congress indicated that it wanted to ...
prevent impending harms, not those harms that had already occurred’”)

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(quoting Abdul-Akbar v. McKelvie, 239 F.3d 307, 315 (3d Cir. 2001)).
The

temperature

extremes

and

other

physical

conditions

of

confinement in the SHU no longer present a threat of physical injury
to Plaintiff because he was released from the SHU before he filed
the present complaint.
THEREFORE, it is on this 30th day of June 2015;
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”) (citations omitted); 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,

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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 (signed by an
authorized

prison

official)

six-month

prison

trust

account

statement, or (2) the $400 fee including the $350 filing fee plus
the $50 administrative fee; and (3) a writing explaining why
Plaintiff should be allowed to proceed despite his three strikes
under 28 U.S.C. § 1915(g); 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 including a certified prison trust account
statement or payment of the filing and administrative fees within
the time allotted by this Court, and a writing establishing that
Plaintiff should be allowed to proceed in forma pauperis despite
having three strikes under 28 § 1915(g), the Clerk of the Court will
be directed to reopen this case; and it is finally
ORDERED that the Clerk of the Court shall serve a copy of this
Memorandum and Order and a blank form “Affidavit of Poverty and
Account Certification (Civil Rights)”[DNJ-Pro
Se-007-A-(Rev.05-2013] upon Plaintiff by regular U.S. mail.

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S/RENEE MARIE BUMB
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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