GARCIA v. CORRECTIONAL MEDICAL SERVICE INC. et al
OPINION. Signed by Judge Anne E. Thompson on 5/9/2017. (seb)
NOT FOR PUBLICATION
MAY 1 O2017
IN THE UNITED STATES DISTRICT COURT AT .
FOR THE DISTRICT OF NEW JERSEY
WILLIAM T. WALSH .M
HONORABLE ANNE E. THOMPSON
No. 13-1250 (AET-DEA)
SERVICE,INC.; RALPH WOODWARD,
M.D., individually and in his official
capacity; ABU AHSAN, M.D., individually
and in his official capacity; DR. NUGGEN,
M.D. Urologist, individually and in her ·
official capacity; DESPINA TERRIS, M.D.,
Oncologist, individually and in her official
capacity; SAINT FRANCIS MEDICIAL
CENTER; CHARLES WARREN, JR.,
N.J.S.P. ADMINISTRATOR, individually
and in his official capacity; NEW JERSEY
STATE PRISON; GARY LANIGAN,
N.J.D.O.C. COMMISSIONER; NEW
JERSEY DEPARTMENT OF
CORRECTION; NEW JERSEY
DEPARTMENT OF PUBLIC SAFETY
AND CORRECTIONAL SERVICES; JOHN
AND JANE DOES 1-30, individually and in
their official capacities,
THOMPSON, District Jpdge:
This matter comes before the Court on Defendant Correctional Medical Services'
("CMS") motion to dismiss the amended complaint pursu~t to 28 U.S.C. § 1915(g). (ECF No.
137). Plaintiff Agustin Garcia opposes the motion. (ECF No. 149). The Court has issued the
opinion below based on the written submissions of the parties and without oral argument
pursuant to Local Civil Rule 78.l(b). For the reasons stated below, the motion is denied.
However, Plaintiffs informa pauperis ("IFP") status is revoked, and the Court will
administratively terminate the complaint. Plaintiff must pay the filing fee within 30 days.
Plaintiff submitted his original complaint on February 25, 2013. (ECF No. 1). He
was granted IFP status on January 30, 2014. (ECF No. 4). His amended complaint was filed
December 22, 2016. (ECF No. 130).
CMS argues the amended complaint must be dismissed as Plaintiff is barred from
IFP status due to having three qualifying "strikes." Plaintiff appears to concede he has three
strikes, but states dismissal is not the appropriate remedy. He requests time to pay the filing fee.
In the three years since the IFP application was granted, no one raised objections
to Plaintiffs IFP status prior to the instant motion. However, "the inmate's informa pauperis
may be revoked at any time if the court, either sua sponte or on a motion, determines that the
status was improperly obtained." Love v. N.J. Dep't of Corr., No. 10-1714, 2011WL345964, at
*33 (D.N.J. Jan. 31, 2011).
The Prison Litigation Reform Act of 1995 ("PLRA"), which amends§ 1915,
establishes certain financial requirements for prisoners who are attempting to bring a civil action
IFP. 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 unless the prisoner is under imminent danger of
serious physical injury." Millhouse v. Sage, 639 F. App'x 792, 793 (3d Cir. 2016) (citing 28
U.S.C. § 1915(g)).
The Third Circuit has held that plaintiffs accrue strikes under the PLRA "only if
the entire action . .. is (1) dismissed explicitly because it is frivolous, malicious, or fails to state a
claim or (2) dismissed pursuant to a statutory provision or rule that is limited solely to dismissals
for such reasons, including (but not necessarily limited to) 28 U.S.C. §§ 1915A(b)(l),
1915(e)(2)(B)(i), 1915(e)(2)(B)(ii), or Rule 12(b)(6) of the Federal Rules of Civil Procedure."
Ibid. (emphasis added)(intemal citation and quotation marks omitted).
CMS argues Plaintiff has six strikes due to having four civil actions and two
appeals dismissed. The Court will address each purported strike in tum.
The dismissal in Garcia v. Bergen County Jail, No. 02-2807 (D.N.J. Sept. 16,
2004), (Def. Exhibit C, ECF No. 137-5), does not constitute a strike within the meaning of§
1915(g). In that case, Plaintiff failed to.provide sufficient evidence to create a genuine issue of
fact on summary judgment. "In this context, it is clear that the district court did not grant
summary judgment on a ground enumerated by the PLRA-it granted summary judgment
"'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). At the time the complaint was filed, Plaintiff was confined in New Jersey State Prison
after being convicted in state court. He is thus subject to § 1915 's filing requirements.
because the evidence did not support the claim." El-Shaddai v. Zamora, 833 F.3d 1036, 1045
(9th Cir. 2016); see also Parks v. Samuels, 540 F. App'x 146, 150 (3d Cir. 2014).
The dismissal in Garcia v. New Jersey State Prison, No. 05-3159 (D.N.J. Sep. 4,
2007) (Def. Exhibit E, ECF No. 13 7-7) was pursuant to Rule l 2(b )( 6) and therefore constitutes a
strike for purposes of§ 1915(g). Byrd v. Shannon, 715 F.3d 117, 126 (3d Cir. 2013). This is
Plaintiff's first strike.
The Third Circuit's order affirming the dismissal of No. 05-3159, Garcia v.
Achebe, No. 07-.4087 (3d Cir. Apr. 1, 2008) (Def. Exhibit F, ECF No. 137-8), does not constitute
a strike. "The PLRA three strikes provision speaks of possible strikes only in terms of 'an action
or appeal ... that was dismissed' on one of the enumerated ground .... Thus, '[u]nder the plain
language of the statute, only a dismissal may count as a strike, not the affirmance of an earlier
decision to dismiss."' Ball v. Famiglio, 726 F.3d 448, 464 (3d Cir. 2013) (quoting 28 U.S.C. §
1915(g); Jennings v. Natrona Cnty. Det. Center Med. Facility, 175 F.3d 775, 780 (10th Cir.
1999)) (omissions and alteration in original).
The dismissal in Garcia v. Correctional Medical Services, No. 08-5652 (D.N.J.
Apr. 21, 2010) (Def. Exhibit G, ECF No. 137-9), also does not qualify as a strike. In that case,
the court granted CMS' motion to dismiss or in the alternative for summary judgment. The order
dismissing the case does not explicitly set forth the basis for the court's decision, (Def. Exhibit
H, ECF No. 137-10), but a review of the opinion indicates the claims against CMS were
dismissed for failure to state a claim. (ECF No. 137-9 at 9). However, the opinion also indicates
the claims against another defendant were dismissed as she was iqunune from suit. (Id. at 9-10
(citing 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e)).
Although a court may sua sponte dismiss a complaint that seeks monetary relief
from someone who is immune from such a suit, suing an immune defendant is "a ground that
does not support the accrual of a strike under§ 1915(g)." Byrd v. Shannon, 715 F.3d 117, 126
(3d Cir. 2013). Thus, the "entire action" was not dismissed for the reasons set forth by the Third
Circuit in Byrd. See ibid.
The amended complaint in Garcia v. Dechan, No. 09-1642 (D.N.J. Nov. 2, 2009)
(Def. Exhibit I, ECF No. 137-11), was explicitly dismissed for failure to state a claim pursuant to
§ 1915(e)(2)(B)(ii). This is Plaintiffs second strike.
Plaintiff did not accrue a strike when the Third Circuit affirmed the dismissal of
No. 09-1642. Garcia v. Dechan, No. 09-4575 (3d Cir. June 21, 2010) (Def. Exhibit J, ECF No.
137-12). See Ball, 726 F.3d at 464; Jennings, 175 F.3d at 780.
In summation, the cases cited by CMS result in only two strikes against Plaintiff.
However, this Court has located another case in which Plaintiff, proceeding under the name
Augustin Garcia, accrued a strike. Garcia v. Ridgefield Police Dep't, No. 07-5827 (D.N.J. Apr.
1, 2008). That case was explicitly dismissed for failure to state a claim pursuant to§§
1915(e)(2)(B)(ii) and 1915A(b)(l), and constitutes Plaintiffs third strike for purposes of§
As Plaintiffhad at least three strikes at the time his IFP application was
submitted, his IFP status must be revoked unless he was "under imminent danger of serious
physical injury" at the time he filed the complaint. 28 U.S.C. § 1915(g); Abdul-Akbar v.
McKelvie, 239 F.3d 307, 313 (3d Cir. 2001).
CMS argues that the imminent danger analysis must consider Plaintiffs
circumstances at the time he filed his amended complaint, not the original complaint. (ECF No.
137-2 at 5). "By its terms,§ 1915(g) governs only the circumstances under which a prisoner may
'bring' a civil action in fotma pauperis, which means that its impact must be assessed at the time
a prisoner files his or her complaint.'' Lopez v. U.S. Dep't ofJustice, 228 F. App'x 218, 219 (3d
Cir. 2007) (internal citations omitted). "In the context of filing a civil action, 'bring' ordinarily
refers to the 'initiation of legal proceedings in a suit.' ... [Plaintiffs] complaint was filed, and
his action was 'brought' when his motion to proceed in forma pauperis was granted." Gibbs v.
Ryan, 160 F.3d 160, 162 (3d Cir. 1998) (quoting Black's Law Dictionary 192 (6th ed.1990)).
If strikes accumulated after a complaint is filed do not support revoking IFP for
that action, see Lopez, 228 F. App'x at 219 (citing Gibbs, 160 F.3d at 163), then it follows that
coming out of imminent danger after a complaint is filed also would not support revoking IFP.
The Court therefore looks to the original complaint to see if it could support a finding of
After reviewing the original complaint, (Def. Exhibit A, ECF No. 137-3),2 the
Court finds that it does not support a finding that Plaintiff was in imminent danger of serious
physical injury at the time of filing. Plaintiff's IFP ·status is therefore revoked, and the Court will
vacate the order granting IFP.
Although the Court will revoke Plaintiff's IFP status, it will not dismiss the
complaint at this time. Other courts in this circuit have granted plaintiffs in similar situations a
limited amount of time to pay the filing fee before dismissing the case, 3 and the Court finds that
The allegations of the original complaint have been summarized at length in several prior
opinions in this matter, see, e.g., ECF No. 90; ECF No. 127, and the Court will not reproduce
See, e.g., Husband v. Aleman-Acevedo, No. 16-498, 2016 WL 7217216, at *3 (M.D. Pa. Dec.
12, 2016), appeal dismissed, No. 17-1248 (3d Cir. Feb. 28, 2017); Ball v. Hummel, No. 12-814,
2012 WL 3614045, at *1 (M.D. Pa. Aug. 21, 2012), affd, 577 F. App'x 96 (3d Cir. 2014);
it is in the interests of justice to administratively terminate the complaint for a period of 30 days.
Plaintiff must pay the $350 filing fee 4 within that time, or the Court will dismiss the complaint
for lack of prosecution.
An appropriate order follows.
U.S. District Judge
Bronson v. Lamb, No. 09-225, 2010 WL 936088, at *2 (W.D. Pa. Feb. 9, 2010), report and
recommendation adopted, No. 09-225, 2010 WL 934266 (W.D. Pa. Mar. 12, 2010).
Prior to May 1, 2013 there was no $50 administrative fee associated with the filing fee. Plaintiff
is therefore only responsible for the fee that he should have paid in full at the time he submitted
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