GAY v. LT. GERDES et al
Filing
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MEMORANDUM OPINION. Signed by Judge Peter G. Sheridan on 12/10/2012. (gxh)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MR. MAURICE GAY,
Plaintiff,
v.
LT. GERDES, et al.,
Defendants.
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Civil Action No. 12-7383 (PGS)
MEMORANDUM OPINION
APPEARANCES:
Plaintiff pro se
Mr. Maurice Gay
Trenton State Prison
Trenton, NJ 08625
SHERIDAN, District Judge
Plaintiff Maurice Gay, a prisoner confined at Trenton State
Prison in Trenton, New Jersey, seeks to bring this civil action
in forma pauperis, without prepayment of fees or security,
asserting claims pursuant to 42 U.S.C. § 1983.
The Three-Strikes Rule
Civil actions brought in forma pauperis are governed by 28
U.S.C. § 1915.
The Prison Litigation Reform Act of 1995, Pub. L.
No. 104-135, 110 Stat. 1321 (April 26, 1996) (the “PLRA”), which
amends 28 U.S.C. § 1915, establishes certain requirements for
prisoners who are attempting to bring a civil action or file an
appeal in forma pauperis.
Under the PLRA, if the prisoner has, on three or more prior
occasions while incarcerated, brought in federal court an action
or appeal that was dismissed on the grounds that it was frivolous
or malicious, or that it failed 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).
Here, while incarcerated, Plaintiff has had three civil
action dismissed for failure to state a claim.
See Gay v.
Crowely, Civil No. 10-6354 (D.N.J.); Gay v. Bartkowski, Civil No.
11-0366 (D.N.J.); Gay v. Earl, Civil No. 11-1319 (D.N.J.).
In this Complaint, Plaintiff seeks relief based upon his
claim that he has been denied a new bed mat, and that he must
sleep on a steel bunk.
These allegations, at most, suggest
discomfort, but do not establish that Plaintiff is in imminent
danger of serious physical injury.
See generally Brown v.
Johnson, 387 F.3d 1344 (11th Cir. 2004) (collecting cases that
typically apply the “imminent danger” exception to serious
medical needs or threats of attack from other inmates).1
Conclusion
For the reasons set forth above, this Court will deny
Plaintiff’s application for leave to proceed in forma pauperis
and will order the clerk to administratively terminate this
1
Similarly, the claim for damages for past injury, based
upon an alleged bedbug infestation of his former bedmat, do not
establish imminent danger of serious physical injury at the time
of filing the Complaint.
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action.2
Plaintiff will be granted leave to apply to re-open
within 30 days by prepaying in full the $350 filing fee for a
civil action.
An appropriate Order will be entered.
s/Peter G. Sheridan
Peter G. Sheridan
United States District Judge
Dated:
December 10, 2012
2
Such an administrative termination is not a “dismissal”
for purposes of the statute of limitations, and if the case is
reopened pursuant to the terms of the accompanying Order, it is
not subject to the statute of limitations time bar if it was
originally filed timely. See Houston v. Lack, 487 U.S. 266
(1988) (prisoner mailbox rule); McDowell v. Delaware State
Police, 88 F.3d 188, 191 (3d Cir. 1996); see also Williams-Guice
v. Board of Education, 45 F.3d 161, 163 (7th Cir. 1995).
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