Opinion

GARRETT v. COMMISSIONER OF SOCIAL SECURITY

Court
District Court, D. New Jersey
Filed
Sep 30, 2021
Cited by
0 cases
Authority
More cited than 25.3%

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.

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).

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

1915(g)’s three-strikes provision refers to any dismissal

Previously, the Court reviewed Plaintiff’s complaint and

noted that Plaintiff’s current action appeared to be subject to

the three-strikes provision of § 1915(g). (Docket No. 2, citing

Garrett v. United States, No. 20-12904, 2020 WL 6739542 (D.N.J.

Nov. 17, 2020)).2 The Court further noted that it appeared the

three-strikes rule applies to a complaint against the

Commissioner of the Social Security Administration. (Id.,

citing 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

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).

dismissal of the plaintiff’s social security appeal under the

three-strikes rule).

The Court directed that Plaintiff was to submit a statement

demonstrating imminent danger of serious physical injury before

he may proceed in forma pauperis. Plaintiff was to submit the

statement within 30 days, or the Court would administratively

terminate the complaint pending receipt of the $350 filing fee

and $52 administrative fee. (Id.)

Plaintiff has filed numerous responses to the Court’s

Order. The Court must deny Plaintiff’s IFP application and

dismiss the matter, for two reasons:

1. The Court has reviewed all of Plaintiff’s submissions

(Docket No. 4-15), and the Court finds that Plaintiff has not

articulated how he is in imminent danger of serious physical

injury arising from the SSA’s alleged failure to pay him the

social security benefits he claims he is owed.3

2. Because Plaintiff is currently incarcerated, Plaintiff

is ineligible to receive SSA benefits, even if it were

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).

determined that he is entitled to them if he were not

incarcerated, and even if Plaintiff paid the filing fee. See No

Social Security Benefits for Prisoners Act of 2009, Pub. L. No.

111-115, 123 Stat. 3029, 2009 H.R. 4218, enacted Dec. 15, 2009,

amends 42 U.S.C. § 404(a)(1)(B), (a)(2) and 42 U.S.C. §

1383(b)(7)(A) (“In the case of payment of less than the correct

amount of benefits to or on behalf of any individual, no payment

shall be made to such individual pursuant to this subsection

during any period for which such individual--

(i) is not an eligible individual or eligible spouse under

section 1382(e)(1) of this title because such individual is an

inmate of a public institution that is a jail, prison, or other

penal institution or correctional facility the purpose of which

is to confine individuals as described in clause (ii) or (iii)

of section 402(x)(1)(A) of this title.”).

Consequently, for the reasons set forth above, Plaintiff’s

IFP application will be denied, and Plaintiff’s complaint will

be dismissed.

An appropriate Order follows.

Date: September 30, 2021 s/ Noel L. Hillman

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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