GARRETT v. UNITED STATES OF AMERICA et al

Filing 8

OPINION. Signed by Judge Noel L. Hillman on 11/17/2020. (cry, )

Case 1:20-cv-12904-NLH-JS Document 8 Filed 11/17/20 Page 1 of 4 PageID: 41

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
ALLEN DUPREE GARRETT,
:
:
Plaintiff,
:
Civ. No. 20-12904 (NLH) (JS)
:
v.
:
OPINION
:
:
UNITED STATES OF AMERICA and :
PATRICIA S. DODSZUWEIT
:
:
Defendants.
:
______________________________:
APPEARANCE:
Allen Dupree Garrett
4366289
Camden County Correctional Facility
330 Federal Street
Camden, NJ 08103
Plaintiff Pro se
HILLMAN, District Judge
Plaintiff Allen Dupree Garrett, an inmate presently
detained in the Camden County Correctional Facility in Camden,
New Jersey, seeks to bring this civil action in forma pauperis,
without prepayment of fees or security, asserting a claim
pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).

See ECF No. 1.

Because Plaintiff has three strikes under the Prison
Litigation Reform Act of 1995 (“PLRA”), the Court ordered
Plaintiff to provide a statement demonstrating he was in
imminent danger of serious physical injury.

ECF No. 3.

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Plaintiff denies that the three-strikes prohibition applies to
him.

ECF No. 4.
The PLRA amended § 1915 and established certain financial

requirements for prisoners who are attempting to bring a civil
action in forma pauperis. 1

The PLRA contains a “three strikes”

provision that “prohibits a prisoner from proceeding IFP in a
civil action or on appeal if, on three or more prior occasions,
he has brought an action or appeal while incarcerated or
detained that was dismissed as frivolous, malicious, or for
failure to state a claim upon which relief may be granted . . .
.”

Millhouse v. Sage, 639 F. App'x 792, 793 (3d Cir. 2016)

(citing 28 U.S.C. § 1915(g)).
Plaintiff has had at least three qualifying dismissals:
Garrett v. Murphy, No. 20-5235 (D.N.J. May 14, 2020) (dismissed
for failure to state a claim); Garrett v. United States, No. 1814515 (D.N.J. Nov. 27, 2018) (dismissed for failure to state a
claim); Garrett v. Mendez, No. 13-5343 (D.N.J. Aug. 14, 2014)
(dismissed for failure to state a claim).

See also Garrett v.

Murphy, No. 20-2719 (3d Cir. Aug. 27, 2020) (ECF No. 5)
(requiring Plaintiff to submit motion demonstrating imminent

1

“‘Prisoner’ means any person incarcerated or detained in any
facility who is accused of, convicted of, sentenced for, or
adjudicated delinquent for, violations of criminal law or the
terms and conditions of parole, probation, pretrial release, or
diversionary program.” 28 U.S.C. § 1915(h).
2

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danger of serious physical injury before he may proceed in forma
pauperis).

Plaintiff objects to the most recent strike,

Garrett, No. 20-5235, because he has appealed the Court’s order.
ECF No. 4 at 1.

He further argues dismissals without prejudice

do not count as strikes.

Id.

The Supreme Court has long held that “[a] prior dismissal
on a statutorily enumerated ground counts as a strike even if
the dismissal is the subject of an appeal.
what the statute literally says.”
Ct. 1759, 1763 (2015).

That, after all, is

Coleman v. Tollefson, 135 S.

Accord Parker v. Montgomery Cty. Corr.

Facility/Bus. Office Manager, 870 F.3d 144, 152 (3d Cir. 2017).
Therefore, the May 14, 2020 dismissal counts as a strike even
though Plaintiff has filed an appeal.
Plaintiff’s argument that dismissals without prejudice do
not count as strikes is equally meritless.

The Supreme Court

recently clarified that § 1915(g)’s “broad language covers all
such dismissals: It applies to those issued both with and
without prejudice to a plaintiff’s ability to reassert his claim
in a later action.”
1724 (2020).

Lomax v. Ortiz-Marquez, 140 S. Ct. 1721,

Plaintiff has at least three dismissals for

failure to state a claim; Lomax confirmed that they count as
strikes for purposes of § 1915(g).
As Plaintiff has at least three qualifying strikes, he may
not proceed in forma pauperis unless he is in imminent danger of
3

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serious physical injury.

28 U.S.C. § 1915(g).

The Court

granted Plaintiff an opportunity to file a statement
demonstrating his need, ECF No. 3, but Plaintiff declined to do
so, ECF No. 4.

He only argues that he is not subject to the

three strikes provision.

Id.

The complaint itself alleges that

Plaintiff was denied access to the courts by the Third Circuit’s
decision to “send[] appeal for #19-12359 writ of error to a
motion panel to be denied Appeal access of the Third Cir. Ct. of
Appeals, Decision by Motion Panel – Jurisdiction Defect.”
No. 1 at 1.

ECF

There are no facts suggesting Plaintiff is in

imminent danger of serious physical injury; therefore, the Court
must deny him in forma pauperis status.

28 U.S.C. § 1915(g).

The Clerk shall be ordered to administratively terminate
the case without filing the complaint.

Plaintiff must pay the

$400 filing and administrative fees before the complaint may be
filed.
An appropriate Order follows.

Dated: November 17, 2020
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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