SMART v. COUNTY OF BURLINGTON BOARD OF CHOSEN FREEHOLDERS

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

______________________________

:

SALAHUDDIN F. SMART, :

:

Plaintiff, : Civ. No. 22-1970 (NLH) (SAK)

:

v. : OPINION

:

:

COUNTY OF BURLINGTON :

BOARD OF CHOSEN FREEHOLDERS, :

et al., :

:

Defendants. :

______________________________:

APPEARANCE:

Salahuddin F. Smart

91107

Burlington County Correctional Center

PO Box 6000

Mt. Holly, NJ 08060

Plaintiff Pro se

HILLMAN, District Judge

Plaintiff Salahuddin F. Smart submitted a complaint under

42 U.S.C. § 1983. ECF No. 1. He seeks to proceed in forma

pauperis (“IFP”). ECF No. 1-1.

The Prison Litigation Reform Act (“PLRA”) established

certain financial requirements for prisoners who are attempting

to bring a civil action IFP.1 28 U.S.C. § 1915. If the prisoner

1 “‘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). Plaintiff is a

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 IFP unless he is in imminent danger

of serious physical injury. 28 U.S.C. § 1915(g); Millhouse v.

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

1915(g)).

“Plaintiff ‘is a recreational litigant,’ and the majority

of his prior actions have been commenced in forma pauperis.”

Smart v. Aramark Inc., No. 14-3007, 2014 WL 2215972, at *1

(D.N.J. May 29, 2014) (footnote omitted). The Court “now

proceed[s] to count [Plaintiff’s] strikes, stopping if [it]

count[s] to three.” Garrett v. Murphy, 17 F.4th 419, 425 (3d

Cir. 2021). If the Court concludes Plaintiff has three strikes,

it “will consider whether he is in imminent danger of serious

physical injury. If he is not, [the Court] will deny his

application for in forma pauperis status, and . . . will defer

consideration of the merits until he pays the filing fee.” Id.

According to the Public Access To Court Electronic Records

(“PACER”) case locator, Plaintiff has filed at least 80 cases

within the Third Circuit. PACER Case Locator, available at

pretrial detainee currently detained in the Burlington County

Correctional Facility in Mount Holly, New Jersey. ECF No. 1.

https://pcl.uscourts.gov (last visited Apr. 27, 2022). The

Court easily finds three qualifying dismissals among the many

cases Plaintiff has filed over the years: Smart v. Admin. Off.

of the Cts., No. 14-4303, 2016 WL 632230 (D.N.J. Feb. 17, 2016)

(dismissed for failure to state a claim), aff’d sub nom. Smart,

v. Admin. Off. of the Cts. State of New Jersey, 672 F. App’x

182, 2017 WL 34475 (3d Cir. 2017); Smart, No. 14-3007, 2014 WL

2215972 (dismissed for failure to state a claim); Smart v.

McLivaine, No. 14-4375, 2014 WL 6386768 (D.N.J. Nov. 14, 2014)

(dismissed for failure to state a claim).

The relevant inquiry is whether a person “brought an action

or appeal” “while incarcerated or detained in any facility,” 28

U.S.C. § 1915(g), and Plaintiff filed each of these actions

while he was detained in either a county or state prison. It is

irrelevant for § 1915(g) purposes that Plaintiff was released

from custody prior to two complaints’ dismissals. See Parker v.

Montgomery Cty. Corr. Facility/Bus. Office Manager, 870 F.3d

144, 149 n.8 (3d Cir. 2017); Harris v. City of New York, 607

F.3d 18, 21–22 (2d Cir. 2010) (“Had Congress intended that the

three strikes rule would no longer apply once a prisoner had

been released, it would have written the statutory provision

differently.”).

Each case was explicitly dismissed for failure to state a

claim. See Dooley v. Wetzel, 957 F.3d 366, 377 (3d Cir. 2020)

(requiring district courts to evaluate strikes under § 1915(g)

“at a moment when it carries immediate significance”).

Accordingly, the Court may not grant Plaintiff’s IFP application

unless Plaintiff is in imminent danger of serious physical

injury. 28 U.S.C. § 1915(g).

Plaintiff alleges Defendant Jane Doe, a social worker with

the Burlington County Department of Corrections, put him on

“suicide watch” for no reason in February 2022. ECF No. 1 at 4-

5. Plaintiff was released from suicide watch a few days later

after speaking with a doctor. Id. at 5. He alleges Defendants

Matthew Leith, the jail’s warden, and Burlington County

Freeholders failed to supervise and train the jail’s social

workers “on why and/or when to place inmates in suicide watch

protocol . . . .” Id. at 4.

“[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). Plaintiff alleges a past violation of

his constitutional rights, and the facts do not suggest

Plaintiff is at risk of imminent physical injury. “‘Imminent’

dangers are those dangers which are about to occur at any moment

or are impending.” Id. at 315. Moreover, Plaintiff alleges he

was “humiliated” during his placement, ECF No. 1 at 5, but

nothing in the complaint suggests Plaintiff is at risk of

serious physical injury. “A physical injury is ‘serious’ for

purposes of § 1915(g) if it has potentially dangerous

consequences such as death or severe bodily harm. Minor harms

or fleeting discomfort don’t count.” Gresham v. Meden, 938 F.3d

847, 850 (6th Cir. 2019). Therefore, the Court must deny

Plaintiff’s IFP application under § 1915(g).

The Clerk will be ordered to administratively terminate the

case without filing the complaint. Plaintiff must pay the $402

filing and administrative fees before the complaint may be

filed.

An appropriate Order follows.

Dated: May 12, 2022 s/ Noel L. Hillman

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