The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
ALLEN DUPREE GARRETT, :
:
Plaintiff, : 1:20-cv-19609-NLH
:
v. : OPINION
:
:
:
COMMISSIONER OF :
SOCIAL SECURITY, :
:
Defendant. :
______________________________:
APPEARANCE:
Allen Dupree Garrett
4366289
Camden County Correctional Facility
330 Federal Street
Camden, NJ 08103
Plaintiff Pro se
HILLMAN, District Judge
Plaintiff Allen Dupree Garrett, an inmate presently
detained in the Camden County Correctional Facility in Camden,
New Jersey, seeks to bring this civil action in forma pauperis,
without prepayment of fees or security, asserting claims under
Section 205(g) of the Social Security Act, 42 U.S.C., Section
405(g), to review a final decision of the Commissioner of the
Social Security Administration. See ECF No. 1.
Title 28, section 1915 of the United States Code
establishes certain financial requirements for prisoners who are
attempting to bring a civil action in forma pauperis. Under §
1915, a prisoner seeking to bring a civil action in forma
pauperis must submit an affidavit, including a statement of all
assets and liabilities, 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(s) for the six-month period immediately preceding the
filing of his complaint. 28 U.S.C. § 1915(a)(2). The prisoner
must obtain this certified statement from the appropriate
official of each correctional facility at which he was or is
confined during such six-month period. Id.
If the prisoner is granted in forma pauperis status, the
prisoner must pay the full amount of the filing fee, in
installments, as follows. 28 U.S.C. § 1915(b)(1). In each
month that the amount in the prisoner’s account exceeds $10.00,
until the filing fee is paid, the agency having custody of the
prisoner shall assess, deduct from the prisoner’s account, and
forward to the Clerk of the Court an installment payment equal
to 20% of the preceding month’s income credited to the
prisoner’s account. 28 U.S.C. § 1915(b)(2).
Plaintiff may not have known when he submitted his
Complaint that he must pay the filing fee, and that even if the
full filing fee, or any part of it, has been paid, the Court
must dismiss the case if it finds that the action: (1) is
frivolous or malicious; (2) fails to state a claim upon which
relief may be granted; or (3) seeks monetary relief against a
defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B) (in forma pauperis actions). See also 28 U.S.C. §
1915A (dismissal of actions in which prisoner seeks redress from
a governmental defendant). If the Court dismisses the case for
any of these reasons, § 1915 does not suspend installment
payments of the filing fee or permit the prisoner to get back
the filing fee, or any part of it, that has already been paid.
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).1
1 The United States Supreme Court has recently explained:
To help staunch a “flood of nonmeritorious” prisoner
litigation, the Prison Litigation Reform Act of 1995 (PLRA)
established what has become known as the three-strikes
rule. That rule generally prevents a prisoner from
bringing suit in forma pauperis (IFP)—that is, without
first paying the filing fee—if he has had three or more
prior suits “dismissed on the grounds that [they were]
frivolous, malicious, or fail[ed] to state a claim upon
which relief may be granted.” 28 U.S.C. § 1915(g). Today
we address whether a suit dismissed for failure to state a
claim counts as a strike when the dismissal was without
prejudice. We conclude that it does: The text of Section
Plaintiff’s current action is subject to the three-strikes
provision of § 1915(g). See Garrett v. United States, No. 20-
12904, 2020 WL 6739542 (D.N.J. Nov. 17, 2020);2 see also Meyers
v. Commissioner of Social Security Administration, 801 F. App’x
90, 96 (4th Cir. 2020) (affirming that the three-strikes rule of
§ 1915(g) applies to a complaint filed against the Commissioner
of the Social Security Administration); Allen v. Quillen, 2020
WL 7181061, at *2 (S.D. Cal. Dec. 7, 2020) (finding that a
complaint against the Commissioner of the Social Security
Administration constituted a strike under the three-strikes
rule); Jones v. Saul, 2020 WL 1495399, at *1 (D. Kan. Feb. 28,
2020) (on a motion to amend the judgment, affirming its
dismissal of the plaintiff’s social security appeal under the
three-strikes rule).
Before Plaintiff may proceed in forma pauperis in this
action, Plaintiff must submit a statement demonstrating why he
1915(g)’s three-strikes provision refers to any dismissal
for failure to state a claim, whether with prejudice or
without.
Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1723 (U.S. June 8,
2020) (one internal citation omitted).
2 Plaintiff has had at least three qualifying dismissals: Garrett
v. Murphy, No. 20-5235 (D.N.J. May 14, 2020) (dismissed for
failure to state a claim); Garrett v. United States, No. 18-
14515 (D.N.J. Nov. 27, 2018) (dismissed for failure to state a
claim); Garrett v. Mendez, No. 13-5343 (D.N.J. Aug. 14, 2014)
(dismissed for failure to state a claim).
would be in imminent danger of serious physical injury if the
Court did not grant him in forma pauperis status.3
CONCLUSION
For the reasons set forth above, Plaintiff must submit a
statement demonstrating imminent danger of serious physical
injury before he may proceed in forma pauperis. Plaintiff must
submit the statement within 30 days, or the Court will
administratively terminate the complaint pending receipt of the
$350 filing fee and $52 administrative fee.4 An appropriate
Order follows.
Date: December 28, 2020 s/ Noel L. Hillman
At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.
3 See Meyers, 801 F. App’x at 95 (explaining that the Imminent
Danger Provision requires a relationship between the imminent
danger alleged in the IFP application and the facts alleged and
relief sought in the underlying claim, and finding that because
the relief sought in the SSA claim was a request for backpay and
the administrative reopening of a prior SSA claim, it had no
relationship at all to the alleged imminent danger of prison
guards failing to protect Appellant from murder at the hands of
a drug lord, and refusing to offer mental health services such
that Appellant is in danger of committing suicide).
4 The Court also notes that Plaintiff’s complaint does not
contain the necessary information to appeal the Commissioner’s
denial of his social security benefits. A form complaint, which
indicates what is required to be pleaded, is located here:
https://www.njd.uscourts.gov/sites/njd/files/forms/SocialSecurit
yComplaint_2.pdf. If Plaintiff demonstrates why his complaint
should not be precluded under the three-strikes rule, the Court
will direct the Clerk to mail Plaintiff a copy of the form
complaint.