FORD v. SOMERSET COUNTY PROSECUTOR'S OFFICE

Filing 2

MEMORANDUM and ORDER that Plaintiffs application for class certification is Denied; Dismissing the Complaint 1 insofar as Plaintiffs wish to file as a class action, such dismissal is without prejudice to Plaintiffs filing of individual amended comp laints which conform to the Federal Rules of Civil Procedure; Ordering the Clerk shall open eight new matters for theadditional Plaintiffs; Ordering the Clerk to Administratively Terminate these actions subject to reopening in the event the Plaintiff submits, within 45 days from the date of entry of this Order, his signed amended complaint asserting his own challenges, together with his filing fee of $350.00. Signed by Judge Joel A. Pisano on 8/6/2012(jjc)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
:
:
:
Plaintiff,
:
:
v.
:
:
SOMERSET COUNTY PROSECUTOR’S :
OFFICE, et al.,
:
:
Defendants.
:
:
JAMES K. FORD,
et al.,

Civil No. 12-3057 (JAP)

MEMORANDUM AND ORDER

It appearing that:
1.

On May 23, 2012, the Clerk of the Court docketed the instant
Complaint.

The Complaint names nine persons as Plaintiffs

in this matter: James K. Ford, Dwight Spiegel, Bashon Simon,
Elijah D. Ford, Alex Ortega, Eric Johnson, Mark Skladany,
Christopher Richards, and Keith Lewis.

Though no

representative has been designated, this complaint appears
to be an attempt to self-certify a class of allegedly
aggrieved detainees housed at the Somerset County Jail who
assert claims against the Somerset County Prosecutor’s
Office and “everyone within the capacity of its office.”
See Docket Entry No. 1.
2.

No filing fee was received on behalf of any plaintiff.
James K. Ford provided an Affidavit of Poverty and Account
Certification in support of a request to proceed in forma

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pauperis.

See Docket Entry No. 1-1.

No application

to

proceed in forma pauperis” was submitted on behalf of any of
the other eight Plaintiffs.
3.

The Prison Litigation Reform Act of 1995, Pub. L. No. 104134, 110 Stat. 1321 (April 26, 1996) (the “PLRA”), which
amends 28 U.S.C. § 1915, establishes certain financial
requirements for prisoners who attempt to bring a civil
action or file an appeal in forma pauperis.
Under the PLRA, a prisoner bringing a civil action in forma
pauperis must submit an affidavit, including a statement of
all assets, which states that the prisoner is unable to 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).

The

prisoner must obtain this statement from the appropriate
official of each prison at which he was or is confined.

Id.

Further, PLRA prohibits a prisoner from bringing a civil
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

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prisoner is under imminent danger of serious physical
injury."

28 U.S.C. § 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 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).
4.

To the extent that Plaintiffs are attempting to establish
class certification, that application will be denied.
Since no Plaintiffs have paid the filing fee or submitted a
properly completed application to proceed in forma pauperis,
this Court has no certainty that all named Plaintiffs intend
to incur the financial responsibility and legal consequences
associated with initiation of this action.

See 28 U.S.C. §

1914(a)(the filing fee for a civil rights complaint is
$350.00); 28 U.S.C. § 1915(b)(if the prisoner is granted
permission to file the complaint in forma pauperis, then the
Court is required to assess the $350.00 filing fee against
the prisoner and collect the fee); Hagan v. Rogers, 570 F.3d
146 (3d Cir. 2009)(litigants proceeding as joint plaintiffs
are subject to $350.00 assessment each if they proceed in

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forma pauperis); Hairston v. Gronolsky, 348 Fed. App’x 716
(3d Cir. 2009)(regardless of the litigant’s willingness or
unwillingness to be assessed the filing fee, the litigant’s
“legal obligation to pay the filing fee [is automatically]
incurred by the initiation of the action itself”).
Moreover, the facts of the Complaint do not indicate that
the requirements of Rule 23 would be met, since the Court
cannot establish numerosity from the allegations made
therein, as the limited factual allegations might not be
applicable to all Plaintiffs.
5.

See Fed. R. Civ. P. 23.

The Court, however, cannot rule out the possibility that
any/all Plaintiff(s) named in the Complaint might wish to
prosecute his/their own claims and would be able to file
amended complaints detailing the specific facts which each
Plaintiff believes to be a violation of his rights.

6.

Since class certification will be denied, Plaintiff’s two
through nine shall have their cases severed from this
initial case, leaving only James K. Ford as the remaining
Plaintiff in this matter.

New matters will be created for

the additional eight Plaintiffs.
7.

An examination of court records reveals that Plaintiff James
K. Ford has filed three previous civil actions in the
District of New Jersey, in which in forma pauperis status
had been granted and which have all been dismissed under 28

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U.S.C. §§ 1915(e)(2) and 1915A.

See Ford v. Vanhise, et

al., Civil No. 11-7200 (JAP); Ford v. Bergen County
Prosecutor’s Office, Civil No. 12-574 (JAP); Ford v. The
State Of New Jersey, Civil No. 12-708 (JAP).
8.

Plaintiff Ford 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).

See Ford v. The

State of New Jersey, Civil No. 12-1086 (JAP)(finding that
Plaintiff has reached the statutory limit and is precluded
by the “three strikes” rule from seeking in forma pauperis
status unless he alleges facts to show that he is in
“imminent danger of serious physical injury.”
THEREFORE, it is on this 6th day of August, 2012;
ORDERED that Plaintiffs’ application for class certification
is DENIED; and it is further
ORDERED that the Complaint, Docket Entry No. 1, insofar as
Plaintiffs wish to file as a class action, is DISMISSED.

Such

dismissal is without prejudice to Plaintiffs’ filing of
individual amended complaints which conform to the Federal Rules
of Civil Procedure; and it is further

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ORDERED that the Clerk shall terminate all Plaintiffs in
this matter, except for James K. Ford; and it is further
ORDERED that the Clerk shall administratively terminate this
matter as to remaining Plaintiff James K. Ford, subject to
reopening in the event James K. Ford submits, within 45 days from
the date of entry of this Order, his signed amended complaint
asserting his own challenges, together with his filing fee of
$350.00; and it is further
ORDERED that the Clerk shall open eight new matters for the
additional Plaintiffs: Dwight Spiegel, Bashon Simon, Elijah D.
Ford, Alex Ortega, Eric Johnson, Mark Skladany, Christopher
Richards, and Keith Lewis.

See Complaint at 4.

Each new matter

shall designate each of these individuals as “Plaintiff” in his
respective new matter and “Somerset County Prosecutor’s Office”
as “Defendants” in each of these new matters; and it is further
ORDERED that the Clerk shall docket the instant Complaint,
Docket Entry No. 1, in each such new matter; and it is further
ORDERED that the Clerk shall designate, in each such new
matter, “Cause:42:1983 Prisoner Civil Rights” and “Jurisdiction:
Federal Question”; and it is further
ORDERED that the Clerk shall administratively terminate each
of these newly opened matters, subject to reopening in the event
the Plaintiff designated in the matter submits, within 45 days
from the date of entry of this Order, his signed amended

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complaint stating the Plaintiff’s individual claims and
designating appropriate defendants with regard to those claims.
Each such submission should be made together with the Plaintiff’s
filing fee of $350.00 or his duly executed in forma pauperis
application; and it is further
ORDERED that the Clerk shall serve copies of this Order upon
all Plaintiffs by regular U.S. Mail.

Each mailing shall include

a blank civil complaint form and a blank in forma pauperis
application form for litigants seeking to file a civil complaint
for use by a prisoner; and it is further
ORDERED that each of the Clerk’s mailings to Plaintiffs
(excluding Ford) shall also include a copy of the docket sheet of
the new matter opened for that particular Plaintiff; and it is
finally
ORDERED that no statement made in this Order shall be
construed as expressing this Court’s opinion about the procedural
or substantive validity (or invalidity) of the claims that might
be alleged by any Plaintiff referred to in this Order.

/s/ Joel A. Pisano
Joel A. Pisano
United States District Judge

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