STOKES v. ELDRED

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

GEORGE W. STOKES, No. 19-cv-20600(NLH)

Plaintiff,

v. OPINION

PHILIP ELDRED, et al.

Defendants.

APPEARANCE:

George W. Stokes

Inmate No. 260218

Atlantic County Jail

5060 Atlantic Avenue

Mays Landing, NJ 08330

Plaintiff, pro se

HILLMAN, District Judge

Plaintiff George Stokes, a pre-trial detainee at Atlantic

County Jail, seeks to commence a civil action pursuant to 42

U.S.C. § 1983 against Philip Eldred, a New Jersey state inmate;

Brendan Shur, Eldred’s criminal defense attorney; the Law

Offices of John J. Zarych, Shur’s employer; Atlantic City

Detective Eric Price; and the Atlantic County Prosecutor’s

Office. ECF No. 1. Plaintiff, proceeding in forma pauperis,

alleges various constitutional and statutory violations. For

the reasons below, after screening pursuant to 28 U.S.C. §

1915(e)(2)(B), the Complaint will be dismissed.

I. BACKGROUND1

A. Facts Underlying This Action

On December 6, 2017, Philip Eldred was arrested and taken

to the Atlantic County Prosecutor’s Office for questioning

relating to the death of Caroline Boothby. ECF No. 1, p. 9.

Eldred gave a recorded statement to Detective Price blaming

Plaintiff for providing the narcotics which resulted in

Boothby’s death. Id. As a result, Plaintiff was charged with

Boothby’s death. Id.

Plaintiff blames Detective Price for his “very suggestive”

and coercive questioning of Eldred, which “did not allow Eldred

to give his own version of what [led] to [Boothby’s] death,” and

Eldred’s attorney Shur, who “was present during Eldred’s second

interview and allowed his client to lie” Id. at p. 10, ¶¶ 2, 4,

p. 14. According to Plaintiff, Eldred, Shur, and Price know the

identity of the individual who actually provided Boothby the

drugs (Plaintiff does not identify that individual, one of

Price’s confidential informants). Id. at pp. 13-14.

Plaintiff also claims that in a subsequent interview in

2018, Eldred disclosed the identity of the individual from whom

1 The Complaint’s allegations are presumed to be true for

screening purposes.

he actually purchased the drugs, but that Detective Price

“beg[a]n speaking in code[] to let Eldred know that he should

stop speaking about that individual.” Id. at p. 14. Plaintiff

claims that Defendants Law Offices of John J. Zarych and the

Atlantic County Prosecutor’s Office were aware of and permitted

the unlawful conduct of Shur and Price, their respective

employees. Id. at pp. 10-11, ¶¶ 3, 5.

Plaintiff seeks “an undisclosed amount of money” for

slander and falsely labeling him as a murderer, and for time

spent incarcerated and the loss of items lost in a storage unit.

Id. at pp. 16, 24. Plaintiff claims that he suffered harm when

his stepdaughter read about the false allegations through a news

alert on her phone. Id. at p. 22. Plaintiff also claims that

his continued incarceration caused or exacerbated his wife’s

health issues because his absence forced her to work two jobs.

Id. at p. 24. Plaintiff also seeks Shur and Price’s termination

from their respective employment, and Shur’s disbarment.

B. Other Actions filed by Plaintiff

On June 13, 2019, Plaintiff filed a § 1983 action against

the Atlantic City Police Department, its Internal Affairs

Department, and two ACPD officers, alleging illegal search and

seizure, unlawful arrest, and failure to supervise and intervene

stemming from a November 9, 2017 incident. Stokes v Loga, No.

19-cv-13713. On April 30, 2020, this Court permitted the

unreasonable search and seizure claim to proceed, granted leave

to replead the false arrest claim, and dismissed without

prejudice the claims against the ACPD and Internal Affairs

Department. Stokes v. Loga, No. 19-cv-13713, 2020 WL 2092842,

at *4 (D.N.J.).

On June 26, 2019, Plaintiff filed a second § 1983 action

alleging that Detective Price, a John Doe detective, and the

Atlantic County Prosecutor’s Office violated Plaintiff’s Fifth

Amendment rights by failing to provide a Miranda warning prior

to questioning when the officers came to Plaintiff’s house in

October 2017. Stokes v. Price, No. 19-cv-14311. On December

17, 2019, this Court held that because Plaintiff ultimately

succeeded in suppressing the statement obtained in violation of

Plaintiff’s Miranda rights, and therefore because the statement

could not be used at trial, Plaintiff did not state a claim for

relief. Stokes v. Price, No. 19-cv-14311, 2019 WL 6873388, at

*2 (Dec. 17, 2019). However, the Court permitted Plaintiff to

amend the complaint to assert additional facts supporting his

false arrest and imprisonment claims. Id.

After Plaintiff filed a proposed amended complaint, this

Court dismissed it on January 13, 2020, holding that “Plaintiff

has given the Court no information about his arrest other than

it was based on his statements to police.” No. 19-cv-14311, ECF

No. 6. The Court also dismissed new claims for seizure of

$1,200 from Plaintiff’s pocket during his arrest, and various

items lost in a storage unit and pawn shop during Plaintiff’s

incarceration, holding that Plaintiff “has failed to explain why

New Jersey’s state procedures to recover ... seized property,

such as the ability to move in the criminal action for return of

his property or the ability to file a separate action for a writ

of replevin, are insufficient.” Id. at p. 7. Finally, the

Court dismissed Plaintiff’s claims against the Atlantic County

Prosecutor’s Office and Prosecutor Damon G. Tyner, holding that

Plaintiff did not meet the Iqbal pleading standard. Id. at pp.

7-8. The Court afforded Plaintiff a “final chance at

amendment.”

On October 20, 2020, this Court dismissed a proposed second

amended complaint, holding that Plaintiff “still has not

addressed the deficiencies in his false arrest or false

imprisonment claims.” Stokes v. Price, No. 19-cv-14311, 2020 WL

6144758, at *2 (D.N.J. Oct. 20, 2020) (“Plaintiff has given the

Court no information about his arrest other than it was based on

information contained in consensual overhears, allegedly in

violation of the New Jersey Wiretap Act.”). Plaintiff also

repeated his earlier loss of property claim without addressing

any deficiencies raised in the prior opinion. Id. at *3. This

Court found that further attempts to amend would be futile, and

therefore dismissed the complaint with prejudice for failure to

state a claim. This was Plaintiff’s first dismissal with

prejudice.

On November 21, 2019, Plaintiff filed another § 1983 action

(his third) against the Atlantic County Prosecutor’s Office,

Internal Affairs Section, and various Atlantic County law

enforcement officials, alleging illegal search and seizure and

false arrest on July 7, 2017. Stokes v. Internal Affs. Section,

No. 19-cv-20414, 2020 WL 241331 (D.N.J. Jan. 15, 2020). On

January 15, 2020, the Court dismissed the Complaint with

prejudice on statute of limitations grounds. Id.,

reconsideration denied, 2020 WL 1872979 (D.N.J. Apr. 15, 2020),

and second reconsideration denied, No. 2020 WL 2537575 (D.N.J.

May 19, 2020). This was Plaintiff’s second dismissal with

prejudice.

On November 22, 2019, the same day that this action

(Plaintiff’s fourth) was filed, Plaintiff also filed his fifth §

1983 action, this time against Aramark Corporation and various

Atlantic County Jail officials for alleged Eighth Amendment

violations. 19-cv-20601, ECF No. 1. On September 29, 2020, the

Court dismissed that Complaint without prejudice for failure to

state a claim, affording Plaintiff (and the other plaintiffs in

that action) leave to file an amended complaint. Stokes v.

Aramark Corp., No. 19-cv-20601, 2020 WL 5793688, at *3 (D.N.J.).

The Court afforded Plaintiff two extensions to file an

amended complaint on November 17, 2020 and January 12, 2021.

19-cv-20601, ECF Nos. 18, 22. In the January 21, 2021 Order

granting a second extension, the Court explicitly stated that

the second extension was the final one, and that the failure to

submit a proposed second amended complaint by February 19, 2021

would result in dismissal with prejudice. 19-cv-20601, ECF No.

22. Upon Plaintiff’s failure to comply, this converted to a

third dismissal with prejudice.2

On November 25, 2019, Plaintiff filed a sixth action

against various Atlantic County Jail employees alleging

interference with Plaintiff’s mail. Stokes v. Denson, 19-cv-

20663, ECF No. 1. That action remains pending for screening

purposes.

On December 6, 2019, Plaintiff filed a seventh action

against Atlantic County Jail and related defendants alleging, in

sum and substance, that an inmate services company discriminated

2 This Court denied Plaintiff’s February 16, 2021 request for a

third extension of time to file an amended complaint. No. 19-cv-

20601, ECF No. 23.

The Court finds Plaintiff’s explanation that “[t]he prepared

documents that I have will not be able to be mailed out until we

are off [quarantine]” to be unavailing, as his continued ability

to mail correspondence directly to the Court — including, as

necessary to preserve the action, an amended complaint listing

allegations — is evident from the numerous prior extension

requests. Id. at ECF Nos. 17, 20, 21.

against Plaintiff and unlawfully denied him an attorney

telephone call. Stokes v. Atl. Cty. Jail, No. 19-cv-21146.

This Court dismissed those claims with prejudice on January 14,

2020. Stokes v. Atl. Cty. Jail, No. 19-cv-21146, 2020 WL

205841, at *3 (D.N.J.). This was Plaintiff’s fourth dismissal

with prejudice.

On December 10, 2019, Plaintiff filed an eighth § 1983

action against Atlantic City police officers alleging illegal

search and seizure stemming from a July 8, 2017 traffic stop.

Stokes v. Atl. Cty. Jail, No. 19-cv-21219. On February 20,

2020, this Court dismissed those claims on statute of

limitations grounds, without prejudice as to Plaintiff’s right

to file arguments in favor of equitable tolling within 30 days.

Stokes v. O'Neil, No. 19-cv-21219, 2020 WL 831126, at *2 (D.N.J.

Feb. 20, 2020). Plaintiff did not file anything else on the

docket; accordingly, that dismissal is now also with prejudice.

This is Plaintiff’s fifth dismissal with prejudice.

II. STANDARD OF REVIEW

The Prison Litigation Reform Act (“PLRA”) requires district

courts to review complaints in those civil actions in which a

prisoner is proceeding in forma pauperis, seeks redress against

a governmental employee or entity, or brings a claim with

respect to prison conditions. See 42 U.S.C. § 1997e(c); 28

U.S.C. §§ 1915(e)(2)(B), 1915A(b).

To survive sua sponte screening for failure to state a

claim, the complaint must allege “sufficient factual matter” to

show that the claim is facially plausible. Fowler v. UPMC

Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). “‘A claim has

facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.’” Fair Wind

Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “[A]

pleading that offers ‘labels or conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do.’”

Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007)).

“[A] pro se complaint, however inartfully pleaded, must be

held to less stringent standards than formal pleadings drafted

by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(internal quotation marks omitted). “Court personnel reviewing

pro se pleadings are charged with the responsibility of

deciphering why the submission was filed, what the litigant is

seeking, and what claims she may be making.” See Higgs v. Atty.

Gen. of the U.S., 655 F.3d 333, 339-40 (3d Cir. 2011) (quoting

Jonathan D. Rosenbloom, Exploring Methods to Improve Management

and Fairness in Pro Se Cases: A Study of the Pro Se Docket in

the Southern District of New York, 30 Fordham Urb. L.J. 305, 308

(2002)). However, while pro se pleadings are liberally

construed, “pro se litigants still must allege sufficient facts

in their complaints to support a claim.” Mala v. Crown Bay

Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).

III. DISCUSSION

A. Section 1983 Claims Against Philip Eldred, Brendan

Shur, and Law Offices of John J. Zarych

Plaintiff alleges, in sum and substance, that Eldred lied

about purchasing drugs from Plaintiff in his interview, that

Shur allowed Eldred to lie, and that Shur’s employer, the Zarych

Firm, should be held accountable for Shur’s behavior. The

claims will be dismissed without prejudice because they are

asserted against private actors not acting under color of state

law, and because any assertions of conspiracy between state and

non-state actors are too vague.

Plaintiff brings this action pursuant to 42 U.S.C. § 1983,

which provides in relevant part:

Every person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State or Territory ...

subjects, or causes to be subjected, any

citizen of the United States or other person

within the jurisdiction thereof to the

deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured

in an action at law, suit in equity, or

other proper proceeding for redress[.]

Thus, to state a claim for relief under § 1983, a plaintiff

must allege, first, the violation of a right secured by the

Constitution, or laws of the United States and, second, that the

alleged deprivation was committed or caused by a person acting

under color of state law. West v. Atkins, 487 U.S. 42, 48

(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255–56 (3d

Cir. 1994).

Nothing in the Complaint suggests that Eldred is anything

other than a private actor. Nevertheless, private individuals

may be liable under § 1983 if they have conspired with or

engaged in joint activity with state actors. Mikhaeil v.

Santos, 646 F. App'x 158, 162 (3d Cir. 2016). To demonstrate

the existence of a conspiracy under § 1983, “a plaintiff must

show that two or more conspirators reached an agreement to

deprive him or her of a constitutional right under color of

law.” Laurensau v. Romarowics, 528 F. App'x 136 (3d Cir. 2013).

To plead a conspiracy claim properly, a plaintiff must allege

“facts that plausibly suggest a meeting of the minds.” Great W.

Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 179

(3d Cir. 2010). The complaint must not plead merely a

“conclusory allegation of agreement at some unidentified point.”

Twombly, 550 U.S. at 557.

Here, however, Plaintiff does not adequately allege

Eldred’s willing participation in any conspiracy with state

actors. To the contrary, Plaintiff explicitly alleges that

“Detective Price did not allow Eldred to freely speak of any

truth[.] He [coerced] Eldred into agreeing that Eldred

purchased [heroin] from [Plaintiff], instead of the individual

[Price chose] to protect because he’s a confidential informant.”

ECF No. 1, p. 14; Brown v. Madison Police Dep't, No. 03-C-177-C,

2003 WL 23095753, at *2 (W.D. Wis. May 15, 2003) allegation that

respondents were “coerced” by law enforcement officer into

making false statement is “not compatible with a conspiracy

claim”) (citing Brokaw v. Mercer County, 235 F.3d 1000, 1016

(7th Cir. 2000)). Accordingly, the § 1983 claims against Eldred

will be dismissed without prejudice.

Likewise, Plaintiff’s claims against Shur and the Zarych

Firm must also be dismissed. Attorneys, whether private or

appointed, do not act under color of state law when performing a

lawyer’s traditional functions as counsel to a defendant in a

criminal proceeding. Steward v. Meeker, 459 F.2d 669 (3d Cir.

1972) (privately-retained counsel does not act under color of

state law when representing client); Polk Co. v. Dodson, 454

U.S. 312, 325 (1981) (a public defender performing a lawyer's

traditional functions as counsel to a defendant, such as

determining trial strategy and whether to plead guilty, is not

acting under color of state law); Thomas v. Howard, 455 F.2d 228

(3d Cir. 1972) (court-appointed pool attorney does not act under

color of state law).

Moreover, the claims must also be dismissed because they

are vague and conclusory. Eaves v. Walker, No. CV 17-886, 2017

WL 5514310, at *3 (W.D. Pa. Nov. 6, 2017), report and

recommendation adopted, No. CV 17-886, 2017 WL 5499964 (W.D. Pa.

Nov. 16, 2017) (citing Olsen v. Idaho St. Bd. of Med., 363 F.3d

916, 929 (9th Cir. 2004) (“To state a claim for conspiracy to

violate constitutional rights, the plaintiff must state specific

facts to support the existence of the claimed conspiracy.”)).

For example, Plaintiff alleges that Shur “used his influence[]

and personal involvement to lead this circus[, and] knew the

identity of the individual [who sold the decedent drugs].” Id.

at p. 13. The claims against the Zarych Firm are yet more

vague: that Plaintiff is convinced that the Zarych Firm closely

monitored the case and allowed Shur to allow Eldred to lie

because the case “was high[ly] publicized.” Id. To the extent

Plaintiff seeks to allege that Shur and the Zarych Firm are

themselves state actors, or conspired with state actors, the

allegations are insufficient to meet the minimum pleading

standards and, accordingly, will be dismissed without prejudice.

B. Section 1983 Claims Against the ACPO

Plaintiff’s allegations against the ACPO are limited to its

alleged support and oversight over Detective Price; no other

facts specific to the ACPO are alleged. ECF No. 1, pp. 14, 23.

“When [New Jersey] county prosecutors engage in classic law

enforcement and investigative functions, they act as officers of

the State.” Coleman v. Kaye, 87 F.3d 1491, 1505 (3d Cir. 1996).

Accordingly, they are entitled to Eleventh Amendment immunity.

Woodyard v. Cty. of Essex, 514 F. App'x 177, 182 (3d Cir. 2013)

(holding that county prosecutor’s office was entitled to

immunity where plaintiff alleged that the prosecutor’s office

violated his Fourth Amendment rights by arresting and detaining

him maliciously and without probable cause after obtaining

evidence against him while investigating a murder and presenting

that evidence to a grand jury); see also Williamson v. Atl. Cty.

Superior Ct., No. 12-7345, 2013 WL 1934517, at *1 (D.N.J. May 8,

2013) (The ACPO is an “arm of the state,” and is thus not a

“person” within the meaning of § 1983) (citing Will v. Michigan

Department of State Police, 491 U.S. 58 (1989)). Thus, the

claims against the ACPO will be dismissed with prejudice.

C. Section 1983 Claims Against Detective Price

Plaintiff alleges that Detective Price coerced Eldred into

identifying Plaintiff as the dealer who sold Caroline Boothby

the drugs that killed her to protect the identity of Price’s

confidential criminal informant. ECF No. 1, p. 14. Plaintiff

appears to assert claims for false arrest or malicious

prosecution.

To state a claim for false arrest, a plaintiff must

establish: “(1) that there was an arrest; and (2) that the

arrest was made without probable cause.” James v. City of

Wilkes–Barre, 700 F.3d 675, 680 (3d Cir. 2012). To state a

claim for false imprisonment, a plaintiff must establish: “(1)

detention; and (2) that the detention was unlawful,” which can

be “based on an arrest made without probable cause.” Id. at

682-83 (citing Wallace v. Kato, 549 U.S. 384, 389 (2007)).

“To prevail on a malicious prosecution claim under section

1983, a plaintiff must show that: (1) the defendants initiated a

criminal proceeding; (2) the criminal proceeding ended in the

plaintiff's favor; (3) the proceeding was initiated without

probable cause; (4) the defendants acted maliciously or for a

purpose other than bringing the plaintiff to justice; and (5)

the plaintiff suffered deprivation of liberty consistent with

the concept of seizure as a consequence of a legal proceeding.”

White v. Brown, 408 F. App'x 595, 599 (3d Cir. 2010).

In Heck v. Humphrey, the Supreme Court held that before a §

1983 plaintiff may “recover damages for allegedly

unconstitutional conviction or imprisonment, or for other harm

caused by actions whose unlawfulness would render a conviction

or sentence invalid,” he must first “prove that the conviction

or sentence has been reversed on direct appeal, expunged by

executive order, declared invalid by a state tribunal authorized

to make such determination, or called into question by a federal

court’s issuance of a writ of habeas corpus[.]” 512 U.S. 477,

486–87 (1994). “Under Heck, where success in a § 1983 action

would necessarily imply the invalidity of a conviction or

sentence, an individual’s suit for damages or equitable relief

is barred unless he can demonstrate that his conviction or

sentence has been invalidated.” Bressi v. Brennen, 823 F. App'x

116, 119 (3d Cir. 2020), cert. denied, No. 20-7001, 2021 WL

1072419 (U.S. Mar. 22, 2021). “If the conviction has not been

invalidated, the claim is not cognizable under § 1983 and must

be dismissed.” Id.

No matter the precise claim Plaintiff attempts to assert,

they share the same operative facts and allegations: Petitioner

was unlawfully arrested and detained based on a false statement

from Eldred induced by Detective Price. If Plaintiff were

prosecuted on the murder charges, depending of course upon other

evidence at trial, Plaintiff’s defense (that he never sold drugs

to the decedent) would necessarily invalidate any charges. Such

claims are Heck-barred. Jones v. Mermon, 507 F. App’x 100, 103

(3d Cir. 2012) (Heck barred false arrest claim where “[the

defendant’s] allegation that the criminal complaint against him

and his arrest were false implicate[d] the validity of his

conviction....”); Gofan v. Pereksta, No. CV 16-8559, 2018 WL

3105425, at *10 (D.N.J. June 25, 2018) (plaintiff’s false arrest

claim alleged lack of probable cause to arrest him for handgun

possession because he did not possess a handgun); Greene v.

Perez, No. 2:13–5493, 2016 WL 3063865, at *2 (D.N.J. May 31,

2016) (“In this case, Greene’s false arrest and false

imprisonment claims do implicate the validity of his conviction

because they are premised on the theory that Greene did not

commit the crimes that have landed him in prison.”); Brenner v.

Twp. of Moorestown, No. 09–219, 2011 WL 1882394, at *6 (D.N.J.

May 17, 2011) (“Because Plaintiff pled guilty to obstructing the

administration of law—the very same offense that Officers Mann,

Jr. and Pascal arrested him for—a finding that the officers

lacked probable cause would necessarily invalidate Plaintiff’s

guilty plea. Therefore, Heck forecloses Plaintiff’s false arrest

claim.”). Accordingly, the claims against Detective Price will

also be dismissed without prejudice.

D. Defamation Claims

Plaintiff appears to allege that Eldred’s false statements

(and Shur’s tacit approval of those statements) harmed

Plaintiff’s reputation when, among other things, Plaintiff’s

stepdaughter learned about the criminal allegations through a

local news notification sent to her phone. ECF No. 1, p. 22.

Plaintiff appears to be asserting a defamation claim.

Statements made to a police officer to assist in the

prevention or detection of a crime are protected from liability

in defamation proceedings if the statements are made without

malice. Myers v. Med. Ctr. of Delaware, Inc., 105 F. App'x 403,

409 (3d Cir. 2004). However, whatever the statements’ veracity

or motivation, the statute of limitations for defamation and

false light is one year from the statement’s publication. N.J.

Stat. Ann. § 2A: 14-3; see also Johnson v. Peralta, 599 Fed.

App’x. 430, n.1 (3d Cir. 2015) (stating that “§ 2A:14–3 applies

to all false light and defamation claims”). Here, Plaintiff’s

Complaint was filed on November 22, 2019, nearly two years after

Eldred was interviewed by Price about the subject allegations.

Accordingly, any defamation claim is time-barred, and will

therefore be dismissed with prejudice.

E. Other State Law Claims

To the extent that Plaintiff may also assert state law

claims other than defamation, the only potential basis for

jurisdiction over such state-law claims would be supplemental

jurisdiction pursuant to 28 U.S.C. § 1367. When a court has

dismissed all claims over which it had original federal question

jurisdiction, it has the discretion to decline to exercise

supplemental jurisdiction over the remaining state-law claims.

See 28 U.S.C. § 1367(c)(3). Because the federal claims have not

survived the initial screening process, the Court declines to

exercise supplemental jurisdiction over any state-law claims.

F. Three Strikes

The PLRA established certain financial requirements for

prisoners who are attempting to bring a civil action in forma

pauperis.3 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 . . . .” Millhouse v.

Sage, 639 F. App’x 792, 793 (3d Cir. 2016) (citing 28 U.S.C. §

1915(g)).

As discussed above, Plaintiff has had at least three

qualifying dismissals, without record of any appeal, though the

Supreme Court has long held that “[a] prior dismissal on a

statutorily enumerated ground counts as a strike even if the

dismissal is the subject of an appeal. That, after all, is what

the statute literally says.” Coleman v. Tollefson, 135 S. Ct.

1759, 1763 (2015). Accord Parker v. Montgomery Cty. Corr.

Facility/Bus. Office Manager, 870 F.3d 144, 152 (3d Cir. 2017).

Accordingly, for future filings, Plaintiff may not proceed in

3 “‘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).

forma pauperis unless he is in imminent danger of serious

physical injury. 28 U.S.C. § 1915(g). “[A] prisoner may invoke

the ‘imminent danger’ exception only to seek relief from a

danger which is ‘imminent’ at the time the complaint is filed.”

Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001).

IV. CONCLUSION

For the above reasons, the Court will dismiss the Complaint

without prejudice. An appropriate order follows.

Dated: _May 25, 2021 _____s/ Noel L. Hillman __

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.