HAYES v. CICCHI

Filing 3

OPINION filed. Signed by Judge Joel A. Pisano on 2/10/2014. (jjc)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ROBERT L. HAYES, JR.,
Plaintiff,
v.
EDMOND C. CICCHI,
Defendant.

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Civil Action No. 13-3707 (JAP)

OPINION

APPEARANCES:
Robert L. Hayes, Jr.
111763
Middlesex County Correction Center
P.O. Box 266
New Brunswick, NJ 08903
Plaintiff pro se
PISANO, District Judge.
Plaintiff, Robert L. Hayes, Jr. (hereinafter referred to as “Plaintiff”), an inmate confined at
Middlesex County Correction Center, seeks to bring this civil action in forma pauperis, pursuant
to U.S.C. § 1915. For the following reasons, Plaintiff’s request to proceed in forma pauperis will
be denied.
I. BACKGROUND
Plaintiff brings this Complaint, pursuant to 42 U.S.C. § 1983, against Defendant Edmond
C. Cicchi alleging that he has been denied the right to be baptized at the facility at which he is
incarcerated. He states that on May 16, 2013 he wrote a letter to the Social Services Department
at the Middlesex County Adult Correction Center asking if he could be baptized while incarcerated
at that facility. The Social Services Department responded on May 17, 2013 that they could not
accommodate his request. Plaintiff asserts that the denial of his request is not in compliance with

the facility rules and regulations which provide that inmates shall be afforded the opportunity to
practice their religion. Plaintiff seeks relief in the form of an award of $500,000.
II. DISCUSSION
Plaintiff seeks to proceed with this action in forma pauperis, pursuant to 28 U.S.C. § 1915,
having submitted an in forma pauperis application with his form Complaint. Plaintiff has
previously filed numerous complaints within the District of New Jersey, four of which have been
dismissed for failure to state a claim. Hayes, Jr. v. Miller, Civil No. 13-0604 (PGS); Hayes v.
Sewitch, Civil No. 13-0605 (PGS); Hayes v. Morris, Civil No. 13-0608 (PGS); and Hayes v.
Cicchi, Civil No. 13-3706 (PGS). Therefore, this action is subject to the “three strikes” provision
of 28 U.S.C. § 1915(g).
The Prison Litigation Reform Act of 1995 (“PLRA”), 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, unless the 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 in imminent danger of
serious physical injury.
As related above, Plaintiff has filed earlier civil actions in the District of New Jersey, at
least four of which have been dismissed for failure to state a claim pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b)(1). Accordingly, Plaintiff is deemed a litigant with “three
strikes” under 28 U.S.C. § 1915(g) because he has passed the statutory limit as set forth in that
statute. Plaintiff is now precluded from seeking in forma pauperis status pursuant to § 1915(g)’s
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“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 of § 1915(g).
In this Complaint, Plaintiff makes no allegations or claims of “imminent danger.” Rather,
the Complaint asserts claims based on allegations that Plaintiff has been unable to become
baptized at the facility at which he is incarcerated. Consequently, 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.
III. CONCLUSION
For the reasons set forth above, Plaintiff’s request to proceed in forma pauperis will be
denied, pursuant to 28 U.S.C. § 1915(g). Further, Plaintiff’s request for appointment of counsel is
denied as moot. An appropriate order follows.

/s/ Joel A. Pisano
JOEL A. PISANO, U.S.D.J.

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