CAMPS v. SCHOLTZ
OPINION FILED. Signed by Judge Jerome B. Simandle on 8/30/17. (js)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HONORABLE JEROME B. SIMANDLE
No. 17-1895 (JBS-JS)
MILLIE SCHOLTZ; CAPTAIN
MCDONNELLY; SERGEANT DAVIS;
BOARD OF CHOSEN FREEHOLDERS OF
BURLINGTON COUNTY MUNICIPAL
Calvin Camps, Plaintiff pro se
500 East 4th Street
Chester, PA 19013
Michelle L. Corea, Esq.
Capehart & Scatchard, P.A.
Laurel Corporate Center
8000 Midlantic Dr., Suite 300
Mt. Laurel, NJ 08054
Attorneys for Defendants Millie Scholtz, Captain
McDonnelly, Sergeant Davis, and Board of Chosen Freeholders
of Burlington County
SIMANDLE, District Judge:
When a plaintiff files a civil case in federal court, the
plaintiff must pay a filing fee or obtain permission, if
indigent, to file without prepayment of a fee pursuant to 28
U.S.C. § 1915.
Where the indigent plaintiff is a prisoner, the
court shall not permit the case to proceed if the prisoner,
while incarcerated, has on at least three occasions, had prior
civil proceedings in federal court dismissed due to such claims
being frivolous or malicious, or for failing to state a claim,
28 U.S.C. § 1915(g).
The law permits an exception to this
three-strikes bar if the plaintiff demonstrates "imminent danger
of serious physical injury."
This case presents the issue of first impression within the
Third Circuit, namely, whether the three-strikes rule of Section
1915(g) applies when the prisoner plaintiff's case has been
filed in a state court and removed by a defendant to federal
Defendants assert in the present dismissal motion that
Plaintiff Calvin Camps is a three-strikes prisoner whose present
case should be dismissed under Section 1915(g), despite the fact
that Plaintiff did not choose to proceed in federal court and
owes no filing fee in this Court.
For the reasons that follow,
the Court finds that Section 1915(g) does not apply to a case
removed from state court, and the motion will be denied.
On February 29, 2016, Plaintiff filed a civil rights
complaint in the New Jersey Superior Court Law Division,
Burlington County alleging unconstitutional conditions of
confinement at the Burlington County Jail.
Docket Entry 1, Exhibit B.
On or about March 7, 2017, the
Burlington County court vacated an entry of default that had
been entered against Defendants.
Statement of Facts ¶ 2.
Defendants removed the action to this Court and paid the filing
and administrative fees on March 22, 2017.
[Docket Entry 1].
See also 28 U.S.C. § 1441(a).1
Defendants now move for dismissal of the complaint under
Federal Rule of Civil Procedure 12(c) alleging Plaintiff is
barred from proceeding in federal court in forma pauperis
(“IFP”)2 due to having at least three qualifying “strikes” under
28 U.S.C. § 1915(g).
Statement of Facts ¶¶ 6-17.
III. STANDARD OF REVIEW
Defendants caption this motion as both a motion for
judgment on the pleadings pursuant to Rule 12(c) and a motion to
dismiss pursuant to Rule 12(b)(6).
A motion made before an
answer is filed is a motion to dismiss pursuant to Rule
A motion addressing the sufficiency of the
allegations made after an answer is filed is a motion for
"Except as otherwise expressly provided by Act of Congress, any
civil action brought in a State court of which the district
courts of the United States have original jurisdiction, may be
removed by the defendant or the defendants, to the district
court of the United States for the district and division
embracing the place where such action is pending." 28 U.S.C. §
2 Plaintiff was granted in forma pauperis status by the state
court. Opposition at 15.
judgment on the pleadings pursuant to Rule 12(c).
have not answered the complaint, the Court considers this a
motion under Rule 12(b)(6).
When considering a motion to dismiss a complaint for
failure to state a claim, the Court must accept all well-pleaded
allegations in the complaint as true and view them in the light
most favorable to the non-moving party.
A motion to dismiss may
be granted only if the plaintiff has failed to set forth fair
notice of what the claim is and the grounds upon which it rests
that make such a claim plausible on its face.
Corp. v. Twombly, 550 U.S. 544 (2007).
Defendants do not assert Plaintiff has not adequately
stated a claim for relief.
They instead argue the Court must
dismiss Plaintiff’s complaint because Plaintiff “qualifies under
28 U.S.C. § 1915(g), commonly referred to as a ‘three striker’
and therefore, must prove his right to litigate under § 1915(g)
terms.” Statement of Facts ¶ 16.
Plaintiff’s opposition does
not address whether he in fact has three strikes and only argues
he has sufficiently pled his claims.
See generally Opposition.
The Prison Litigation Reform Act of 1995 (“PLRA”), which
amends § 1915, establishes certain financial requirements for
prisoners who are attempting to bring a civil action IFP.
Section 1915 states in relevant part:
In no event shall a prisoner bring a civil action or
appeal a judgment in a civil action or proceeding under
this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it
is frivolous, malicious, or fails to state a claim upon
which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.
28 U.S.C. § 1915(g).
Thus, a prisoner who has acquired three
“strikes” in prior federal court filings must either pay the
filing fee in full or establish imminent danger before a new
complaint or appeal may be filed.
The Court finds that
Plaintiff has at least three qualifying strikes,3 and that his
Complaint, which alleges overcrowding and excessive lock-downs
at at the Burlington County Jail, does not claim imminent danger
of serious physical injury, and would not fall within the
exception to the three-strikes rule if filed in federal court.
See Camps v. James, et al., No. 95-2603 (E.D. Pa. May 8, 1995)
(dismissing complaint as frivolous); Camps v. Warden of P.I.C.C.
Press Grooms, No. 91-5807 (Sept. 17, 1991) (dismissing complaint
as frivolous); Camps v. Attorney at Law Daniel Ryan, No. 91-5765
(E.D. Pa. Sept. 16, 1991) (dismissing complaint as frivolous);
Camps v. City of Philadelphia, No. 90-7617 (E.D. Pa. Dec. 14,
1990) (dismissing complaint as frivolous). See also Keener v.
Pa. Bd. of Prob. & Parole, 128 F.3d 143, 144–45 (3d Cir. 1997)
(holding dismissals for frivolousness prior to the passage of
the PLRA may be “included among the three that establish the
threshold for requiring a prisoner to pay the full docket fees
unless the prisoner can show s/he is ‘under imminent danger of
serious physical injury’”).
The Court’s research revealed no precedential decision by a
circuit court of appeals as to whether a “three-strikes”
plaintiff must comply with § 1915(g), either by paying the
filing fee or by being in imminent danger of serious physical
injury at the time of filing, when the complaint was filed in
state court but properly removed to federal court.
have held § 1915(g) does not provide a proper basis to remand a
removed case back to state court, but those courts declined to
consider whether § 1915(g) required dismissal in the absence of
payment or imminent danger.
Lloyd v. Benton, 686 F.3d 1225,
1228 (11th Cir. 2012); Lisenby v. Lear, 674 F.3d 259, 263 (4th
See also Fleming v. United States, 538 F. App'x
423, 425 (5th Cir. 2013) (affirming dismissal on alternate basis
and declining to address whether § 1915(g) barred the complaint
The Court of Appeals for the Ninth Circuit
recently addressed whether a prisoner could accrue a “strike”
under § 1915(g) when a district court dismissed a case
originally filed in state court and removed by defendants and
concluded “[t]he plain language of [§ 1915(g)] does not support
charging a prisoner with a strike based on a district court's
dismissal of a lawsuit filed by the prisoner in state court,
even if the action was later removed to federal court by another
party.” Harris v. Mangum, 863 F.3d 1133, 1140 (9th Cir. 2017).
The district courts that have considered the question are
Compare Evans v. Bristol-Myers Squibb Co., No. 16-1039,
2016 WL 3184421, at *3 (D. Kan. June 8, 2016) (“Evans qualifies
as a ‘three-striker’ and must prove his right to litigate under
§ 1915(g)'s terms.
Section 1915(g) permits ‘three-strikers,’
like Evans, to pursue federal civil actions only if s/he pays
the court's fees or meets an exigent harm exception.”), with
Abreu v. Kooi, No. 9:14-1529, 2016 WL 4702274, at *4 (N.D.N.Y.
Aug. 4, 2016), report and recommendation adopted, No. 9:14-1529,
2016 WL 4690404 (N.D.N.Y. Sept. 7, 2016) (holding § 1915(g) does
not require cases filed by “three-strike” plaintiffs in state
court and removed by defendants to be dismissed).
In a case of
first impression in this district, the Court finds § 1915(g)
does not permit a district court to dismiss a properly removed
complaint on the basis of a plaintiff’s “three strikes” status.
Defendants’ argument that Plaintiff must “prove his right
to litigate” is not supported by the plain language of §
Statement of Facts ¶ 17.
“[Section] 1915(g) does not
block a prisoner's access to the federal courts.
It only denies
the prisoner the privilege of filing before he has acquired the
necessary filing fee.” Abdul-Akbar v. McKelvie, 239 F.3d 307,
314 (3d Cir. 2001).
However, § 1915(g) is not applicable
because Plaintiff is not asking the Court to grant him IFP
status under § 1915 so he may pay the federal filing fee in
installments; Defendants have already paid the only applicable
filing fee after deciding to bring this matter to federal court.
“Defendants’ decision to remove a properly filed state court
action does not warrant dismissal of Plaintiff's action.
Plaintiff did not choose to bring this action in federal court,
nor does he seek to proceed without prepayment of fees under §
Instead, Defendants, as they are entitled to do, removed
the action to this Court and paid the filing fee.” Abreu, 2016
WL 4702274, at *4 (emphasis in original).
Nothing in the plain
text of § 1915(g) supports dismissal of an action brought in
state court and removed to federal court after the filing fee
has been paid by Defendants.
As the Ninth Circuit
recently observed in dictum, “[t]he statute does not prevent an
indigent prisoner-plaintiff with three strikes from proceeding
in a case that someone else filed in federal court.” Harris v.
Mangum, 863 F.3d 1133, 1141 (9th Cir. 2017).
The Court disagrees with Defendants’ argument that
permitting the complaint to proceed would allow Plaintiff to
circumvent the purpose of the PLRA.
The purpose of the PLRA was
“to limit the filing of frivolous and vexatious prisoner
lawsuits” that were accumulating in federal courts and wasting
scarce judicial resources.
Abdul-Akbar, 239 F.3d at 314.
objective is not served by dismissing a complaint that was filed
in state court because the PLRA was not intended to limit
filings in state courts.
See id. at 315 (“Potentially negative
consequences in federal courts, as distinguished from state
courts, are precisely the consequences intended by Congress.”
(emphasis in original)).
See also Nicholas v. Tucker, 114 F.3d
17, 19 (2d Cir. 1997) (“[T]he [PLRA] does not affect the
prisoner's right to bring an action in state court . . . .”);
Abreu, 2016 WL 4702274, at *4.
Moreover, applying § 1915(g) to cases removed from state
court might result in the misuse of § 1915(g) by defendants and
cause significant impairment to prisoners’ ability to bring
civil suits in federal and state court.
An indigent prisoner
with three strikes from prior federal litigation is unable to
bring a potentially meritorious complaint in federal court
without full payment of the filing fee due to his or her
This is the consequence envisioned by
Congress in its enactment of § 1915(g).
However, the same
prisoner would essentially be barred from filing his or her
claim in state court because a defendant could “effectively end
a meritorious claim by an indigent plaintiff in state court by
removing it to federal court where the claim will be stricken
under the three strikes rule.” Bartelli v. Beard, No. 3:CV-081143, 2008 WL 4363645, at *2 (M.D. Pa. Sept. 24, 2008)
(remanding complaint to state court based on § 1915(g)).
goes beyond congressional intent as indicated by the plain text
of § 1915(g).
See Abdul-Akbar, 239 F.3d at 314–15 (noting that
§ 1915(g) does not block access to the courts in part because
“prisoners may seek relief in state court, where limitations on
filing I.F.P. may not be as strict.”).
The Court holds that a plaintiff’s three-strikes status
under § 1915(g) does not provide a basis for dismissal of a
complaint that was properly filed in state court and removed by
a defendant to federal court. Section 1915(g) only applies to
actions filed in federal court by plaintiffs seeking to proceed
IFP, and Plaintiff did not file this complaint in federal court.
Defendants chose to remove this action to federal court,
plaintiff owes no filing fee, and the case will proceed.
motion to dismiss is denied.
For the reasons stated above, Defendants’ Motion to Dismiss
Defendants shall answer the complaint within 14 days
of the entry of this order.
Fed. R. Civ. P. 12(a)(4).
An appropriate order follows.
August 30, 2017
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
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