# STOKES v. ELDRED

> District Court, D. New Jersey · May 25, 2021

URL: https://www.frixlaw.com/law-library/cases/10270672

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** May 25, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10270672. Public record. Not legal advice.