The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
ALLEN DUPREE GARRETT, :
:
Plaintiff, : Civ. No. 22-5664 (NLH) (MJS)
:
v. : OPINION
:
:
GOV. PHILIP D. MURPHY, et al. :
:
Defendants. :
______________________________:
APPEARANCE:
Allen Dupree Garrett
881340B
Somerset County Jail
P.O. Box 3000
Somerville, NJ 08876-1262
Plaintiff Pro se
HILLMAN, District Judge
Plaintiff Allen Dupree Garrett, an inmate presently
detained in the Somerset County Jail, seeks to bring this civil
action in forma pauperis, without prepayment of fees or
security. ECF No. 1-2. He also requests the appointment of pro
bono counsel. ECF No. 2.
The Prison Litigation Reform Act (“PLRA”) amended § 1915
and established certain financial requirements for prisoners who
are attempting to bring a civil action in forma pauperis.1 The
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
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)).
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). See also Garrett v.
Murphy, 17 F.4th 419 (3d Cir. 2021). Therefore, he may not
proceed in forma pauperis unless he is in imminent danger of
serious physical injury. 28 U.S.C. § 1915(g). The Court
ordered Plaintiff to provide a statement demonstrating he was in
imminent danger of serious physical injury. ECF No. 4.
Plaintiff’s complaint alleges he contracted COVID-19 in the
Camden County Correctional Facility on January 29, 2020 and was
not released from custody under New Jersey’s Public Health
Emergency Credits. ECF No. 1 at 4. In response to the Court’s
terms and conditions of parole, probation, pretrial release, or
diversionary program.” 28 U.S.C. § 1915(h).
order, he submitted a response quoting the Third Circuit’s
September 22, 2021 precedential opinion from a prior complaint.
ECF No. 5 at 1. The cited portion reproduces the Third
Circuit’s conclusion that Plaintiff had not shown imminent
danger at the time he filed his appeal:
Garrett argues that COVID-19 is rampant in New Jersey
jails, that New Jersey is not following proper
guidelines, and that he faces a serious risk of death or
injury if he gets sick with COVID-19 given his poor
health. But Garrett has since filed medical records
showing that he had COVID-19 in December of 2020.
Garrett's risk of getting sick with COVID-19 is
therefore no longer “imminent” — it has already
occurred. Protected by natural immunity, Garrett has
not shown that continued exposure to COVID-19 still puts
him at imminent risk of serious physical injury. We
also take judicial notice that, to the extent Garrett
believes that he remains at serious risk of physical
injury or death, effective COVID-19 vaccines are widely
available, and Garrett has not shown he lacks proper
access to the vaccine.
Garrett has not met his burden of showing imminent threat
of serious physical injury.
Id. at 1 (quoting Garrett v. Murphy, 17 F.4th 419, 433 (3d Cir.
2021)). Plaintiff proceeds to argue that “[t]he right to
medical aid also includes the right of refusal. A competent
person has a constitutionally protected liberty interest to
refuse unwanted medical treatment . . . .” Id. at 2.
“[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). “The statute contemplates that the
‘imminent danger’ will exist contemporaneously with the bringing
of the action. Someone whose danger has passed cannot
reasonably be described as someone who ‘is’ in danger, nor can
that past danger reasonably be described as ‘imminent.’” Id. at
313. Moreover, “[t]o fulfill the ‘imminent danger’
requirements, [plaintiff] must demonstrate an adequate nexus
between the claims” in the complaint “and the ‘imminent danger
[he] alleges.’” Ball v. Hummel, 577 F. App'x 96, 98 (3d Cir.
2014) (per curiam) (quoting Pettus v. Morgenthau, 554 F.3d 293,
296 (2d Cir. 2009)).
According to the complaint, Plaintiff contracted COVID-19
more than two years before he filed this complaint on September
12, 2022. As the Third Circuit noted, “Garrett's risk of
getting sick with COVID-19 is therefore no longer ‘imminent’ —
it has already occurred.” His argument that he is in imminent
danger because he refuses to be vaccinated for COVID-19 is not
persuasive. Therefore, the Court must deny him in forma
pauperis status. 28 U.S.C. § 1915(g).
The Clerk shall 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. The Court will deny the motion for counsel without
prejudice. Plaintiff may request counsel again once he has paid
the fees.
Plaintiff also requested to consolidate this action with
Civil Action No. 22-5840 that is presently pending in the Newark
Vicinage. ECF No. 6. The Court will deny this request without
prejudice, and Plaintiff may file a new motion for consolidation
after paying the fees.
Finally, Plaintiff submitted additional documents on
October 24, 2022 wherein he makes allegations against the New
Jersey State Parole Board. ECF No. 8. Plaintiff’s claims
against the Parole Board are not part of this complaint about
the conditions at the Camden County Correctional Facility. If
Plaintiff wishes to proceed with his claims against the Parole
Board it must be filed as a new civil rights complaint and
accompanied by either the filing fee or a new in forma pauperis
application.2 The Court will direct the Clerk to send Plaintiff
blank forms for his use.
An appropriate Order follows.
Dated: October 31, 2022 s/ Noel L. Hillman
At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.
2 Any new in forma pauperis application would be subject to a
separate imminent danger analysis.