BARNES v. MERCER COUNTY CORRECTION CENTER et al

Filing 2

MEMORANDUM OPINION filed. Signed by Judge Freda L. Wolfson on 7/20/2011. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JAMES ANTHONY BARNES,

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Plaintiff,
v.
MERCER COUNTY CORRECTION
CENTER, et al.,
Defendants.

Civil Action No. 11-3554 (FLW)
MEMORANDUM OPINION

APPEARANCES:
JAMES ANTHONY BARNES, Plaintiff pro se
#507188
Mercer County Correction Center
P.O. Box 8068
Lambertville, New Jersey 08610
WOLFSON, District Judge
Plaintiff James Anthony Barnes, a state inmate presently
confined at the Mercer County Detention Center in Lambertville,
New Jersey, seeks to bring this civil action in forma pauperis,
pursuant to 28 U.S.C. § 1915.

For the following reasons,

Plaintiff’s request to proceed in forma pauperis will be denied.

BACKGROUND
Plaintiff’s Complaint alleges a mostly unintelligible claim
against the Mercer County Correction Center (“MCCC”), the Keefee
Commissary and MCCC Guard Coleman,1 complaining that on December
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The docket report incorrectly lists the Trenton Police
Department, Trenton State Prison, Rahway State Prison and South

21, 2010 and December 28, 2010, he was overcharged for items and
some items were damaged that he had purchased from the commissary
at MCCC.

He states that he has informed Internal Affairs and

other officials about these complaints.

He also generally

complains that he should not be housed on “R.N.D. floor” and that
he was sexually assaulted.2

He further contends that the

commissary does not provide razors, brushes and shower shoes, in
violation of New Jersey state laws.

(Complaint, ¶¶ 4, 5 and 6).

Plaintiff seeks to be compensated and all monies overcharged or
stolen from him returned.

(Complaint, ¶ 7).
DISCUSSION

Plaintiff seeks to proceed with this action in forma
pauperis, pursuant to 28 U.S.C. § 1915.
The Prison Litigation Reform Act of 1995 (“PLRA”), enacted
on April 26, 1996, prohibits a prisoner from bringing a civil

Woods State Prison as defendants in this matter. The Court notes
that this was an entry error as these defendants were listed in
Plaintiff’s present Complaint as named defendants in prior
lawsuits. (Complaint, ¶ 2a). There are no allegations asserted
against these defendants in the instant Complaint. Therefore,
the Court will direct the Clerk of the Court to correct the
docket by deleting these defendants accordingly.
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Although Plaintiff provides dates and details with
respect to his claims concerning the commissary overcharges and
damaged items, Plaintiff does not allege any facts with respect
to allegation that he was sexually assaulted. He does not state
when the assault occurred, nor does he state whether the assault
was committed by another inmate. Thus, it is not clear whether
he is making any claims with respect to the alleged sexual
assault.
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action in forma pauperis pursuant to 28 U.S.C. § 1915 “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); see also Keener

v. Pennsylvania Board of Probation & Parole, 128 F.3d 143, 144-45
(3d Cir. 1997) (holding that frivolousness dismissals prior to
enactment of PLRA count as "strikes" under § 1915(g)).

A

prisoner who has three or more such dismissals may be excused
from this rule only if he is "under imminent danger of serious
physical injury."

Id.

When deciding whether an inmate meets the

“imminent danger" requirement, a court must examine the situation
faced by the inmate at the time of the filing of the complaint,
and a showing of danger in the past is insufficient to
demonstrate “imminent danger.”

Abdul-Akbar v. McKelvie, 239 F.3d

307, 312 (3d Cir. 2001).
An examination of court records reveals plaintiff has filed
numerous civil actions in the District of New Jersey.

At least

three of these actions have been dismissed under 28 U.S.C. §§
1915(e)(2) and 1915A.

See, e.g., Barnes v. Mercer County Court

House, Civil No. 07-1194 (FLW); Barnes v. Trenton State Prison

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Medical Department, Civil No. 09-1604 (GEB); Barnes v. Trenton
Police Department, Civil No. 09-5934 (JAP).
Accordingly, Plaintiff has reached the statutory limit as
set forth in 28 U.S.C. § 1915(g) and is precluded from seeking in
forma pauperis status based on the “three strikes” rule unless he
alleges facts to show that he is in “imminent danger of serious
physical injury”, which would excuse him from the restrictions
under § 1915(g).
In his Complaint, Plaintiff makes no allegations or claims
of “imminent danger.”

Rather, the allegations of the Complaint

appear to be limited to past incidents of commissary overcharges
and damaged goods in December 2010, and one past incident of a
general, unarticulated allegation of sexual assault.

As

referenced above, the threat of imminent danger must be
prospective and cannot relate to a past incident of harm as
alleged here.

See Abdul-Akbar, 239 F.3d at 312.

Therefore,

because the Complaint in this action does not contain sufficient
allegations reasonably suggesting that Plaintiff is in “imminent
danger of serious physical injury”, which would excuse him from
the restrictions under § 1915(g), Plaintiff may not proceed in
forma pauperis.
This Court makes no findings as to whether or not Defendant
has violated any state or federal law, or otherwise violated
Plaintiff’s constitutional rights.

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However, this Court finds

that Plaintiff has not demonstrated “imminent danger” in order to
override the “three strikes” requirement of § 1915(g).

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CONCLUSION
Based on the foregoing, Plaintiff’s request to proceed
in forma pauperis will be denied, pursuant to 28 U.S.C. §
1915(g).

As set forth in the accompanying Order, Plaintiff’s

case will be administratively terminated.

Upon submission of the

filing fee within 30 days, Plaintiff may move to reopen his case,
if he so chooses.

S/Freda L. Wolfson
FREDA L. WOLFSON
United States District Judge
Dated: July 20, 2011

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