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Camps v. Scholtz

United States District Court, D. New Jersey

August 30, 2017

CALVIN CAMPS, Plaintiff,
v.
MILLIE SCHOLTZ; CAPTAIN MCDONNELLY; SERGEANT DAVIS; BOARD OF CHOSEN FREEHOLDERS OF BURLINGTON COUNTY MUNICIPAL CORP., Defendants.

          Calvin Camps, Plaintiff pro se.

          Michelle L. Corea, Esq. Capehart & Scatchard, P.A. Attorneys for Defendants Millie Scholtz, Captain McDonnelly, Sergeant Davis, and Board of Chosen Freeholders of Burlington County.

          OPINION

          JEROME B. SIMANDLE U.S. District Judge.

         I. INTRODUCTION

         When a plaintiff files a civil case in federal court, the plaintiff must pay a filing fee or obtain permission, if indigent, to file without prepayment of a fee pursuant to 28 U.S.C. § 1915. Where the indigent plaintiff is a prisoner, the court shall not permit the case to proceed if the prisoner, while incarcerated, has on at least three occasions, had prior civil proceedings in federal court dismissed due to such claims being frivolous or malicious, or for failing to state a claim, 28 U.S.C. § 1915(g). The law permits an exception to this three-strikes bar if the plaintiff demonstrates "imminent danger of serious physical injury." Id.

         This case presents the issue of first impression within the Third Circuit, namely, whether the three-strikes rule of Section 1915(g) applies when the prisoner plaintiff's case has been filed in a state court and removed by a defendant to federal court. Defendants assert in the present dismissal motion that Plaintiff Calvin Camps is a three-strikes prisoner whose present case should be dismissed under Section 1915(g), despite the fact that Plaintiff did not choose to proceed in federal court and owes no filing fee in this Court. For the reasons that follow, the Court finds that Section 1915(g) does not apply to a case removed from state court, and the motion will be denied.

         II. BACKGROUND

         On February 29, 2016, Plaintiff filed a civil rights complaint in the New Jersey Superior Court Law Division, Burlington County alleging unconstitutional conditions of confinement at the Burlington County Jail. See Complaint, Docket Entry 1, Exhibit B. On or about March 7, 2017, the Burlington County court vacated an entry of default that had been entered against Defendants. Statement of Facts ¶ 2. Defendants removed the action to this Court and paid the filing and administrative fees on March 22, 2017. [Docket Entry 1]. See also 28 U.S.C. § 1441(a).[1]

         Defendants now move for dismissal of the complaint under Federal Rule of Civil Procedure 12(c) alleging Plaintiff is barred from proceeding in federal court in forma pauperis (“IFP”)[2] due to having at least three qualifying “strikes” under 28 U.S.C. § 1915(g). Statement of Facts ¶¶ 6-17.

         III. STANDARD OF REVIEW

         Defendants caption this motion as both a motion for judgment on the pleadings pursuant to Rule 12(c) and a motion to dismiss pursuant to Rule 12(b)(6). A motion made before an answer is filed is a motion to dismiss pursuant to Rule 12(b)(6). A motion addressing the sufficiency of the allegations made after an answer is filed is a motion for judgment on the pleadings pursuant to Rule 12(c). As Defendants have not answered the complaint, the Court considers this a motion under Rule 12(b)(6).

         When considering a motion to dismiss a complaint for failure to state a claim, the Court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the non-moving party. A motion to dismiss may be granted only if the plaintiff has failed to set forth fair notice of what the claim is and the grounds upon which it rests that make such a claim plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

         IV. ANALYSIS

         Defendants do not assert Plaintiff has not adequately stated a claim for relief. They instead argue the Court must dismiss Plaintiff's complaint because Plaintiff “qualifies under 28 U.S.C. § 1915(g), commonly referred to as a ‘three striker' and therefore, must prove his right to litigate under § 1915(g) terms.” Statement of Facts ¶ 16. Plaintiff's opposition does not address ...


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