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.