SZEMPLE v. CORRECTIONAL MEDICAL SERVICE INC. et al

Filing 2

OPINION and ORDER that Plaintiff's application to file the Complaint in forma pauperis is hereby denied; Administratively terminating this case; Ordering that if Plaintiff wishes to have this case reopened he must (1) file a motion to reopen this matter within 30 days, along with a writing with the Court alleging the reasons why he is in imminent danger of serious physical injury; and a complete application to proceed in forma pauperis, including his six-month certified prison account statement, or (2) a motion to reopen this matter within 30 days, along with the $350.00 filing fee. Signed by Judge Peter G. Sheridan on 3/18/2013. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
: Civil Action No. 13-1058(PGS)
:
Plaintiff,
:
:
O P I N I O N
v.
:
A N D
:
O R D E R
CORRECTIONAL MEDICAL
:
SERVICE, et al.,
:
:
Defendants.
:
______________________________:
CRAIG FRANCIS SZEMPLE,

Plaintiff, a prisoner currently confined at the Northern
State Prison in Newark, New Jersey, submitted a civil Complaint
pursuant to 42 U.S.C. § 1983, and an incomplete application to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
The Prison Litigation Reform Act of 1995, enacted on April
26, 1996, 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. . . .”

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).
The Court has determined that while incarcerated, Plaintiff
has had three prior civil actions or appeals dismissed as
frivolous or for failure to state a claim.

See, e.g., Szemple v.

McGhee, Civ. No. 94-3377 (MLC) (dismissed as frivolous); Szemple
v. McGhee, et al., Civ. No. 94-3378 (MLC) (dismissed as
frivolous); and Szemple v. Talbot, et al., Civ. No. 04-5338 (MLC)
(dismissed for failure to state a claim pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A).
Based on the foregoing,
It is on this 18TH day of MARCH, 2013,
ORDERED that, pursuant to 28 U.S.C. § 1915, Plaintiff's
application to file the Complaint in forma pauperis is hereby
denied; it is further
ORDERED that the Clerk of the Court shall administratively
terminate and close this case; and it is further
ORDERED that if Plaintiff wishes to have his case reopened,

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he must (1) file a motion to reopen this matter within 30 days,
along with a writing with the Court alleging the reasons why he
is in “imminent danger of serious physical injury;” and a
complete application to proceed in forma pauperis, including his
six-month certified prison account statement, or (2) a motion to
reopen this matter within 30 days, along with the $350.00 filing
fee.

s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.

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