United States District Court, D. New Jersey
SALAHUDDIN F. SMART, Plaintiff,
QUEEN ANNE'S COUNTY, et al., Defendants.
B. KUGLER UNITED STATES DISTRICT JUDGE
Salahuddin F. Smart is presently confined at the Camden
County Department of Corrections Facility, in Camden, New
Jersey. He seeks to bring this civil action in forma
pauperis, without prepayment of fees or security,
asserting claims pursuant to 42 U.S.C. § 1983. The
Prison Litigation Reform Act of 1995 (the “Act”),
which amends 28 U.S.C. § 1915, establishes certain
financial requirements for prisoners who are attempting to
bring a civil action in forma pauperis.
the Act, a prisoner bringing a civil action in forma
pauperis must submit an affidavit, including a statement
of all assets, 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 for the six-month period immediately preceding the
filing of his complaint. 28 U.S.C. § 1915(a)(2). The
prisoner must obtain this statement from the appropriate
official of each prison at which he was or is confined.
entire fee to be paid in advance of filing a civil complaint
is $400. That fee includes a filing fee of $350 plus an
administrative fee of $50, for a total of $400. A prisoner
who is granted in forma pauperis status will,
instead, be assessed a filing fee of $350 and will not be
responsible for the $50 administrative fee. If in forma
pauperis status is denied, the prisoner must pay the
full $400, including the $350 filing fee and the $50
administrative fee, before the complaint will be filed.
prisoner is granted in forma pauperis status, the
prisoner must pay the full amount of the $350 filing fee 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 $350.00 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, payment equal
to 20% of the preceding month's income credited to the
prisoner's account. 28 U.S.C. § 1915(b)(2).
may not have known when he submitted his complaint that he
must pay the filing fee, and that 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 is: (1) 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). If the Court dismisses the case for any of
these reasons, the Act does not permit the prisoner to get
his filing fee back.
action, Plaintiff has submitted an application to proceed
in forma pauperis but has failed to submit a
certified copy of his inmate trust fund account statement for
the six-month period immediately preceding the filing of his
complaint. 28 U.S.C. § 1915(a)(2). Typically, at this
time, the Court would give Plaintiff an opportunity to submit
a complete application to proceed in forma pauperis.
For the reasons that follow, however, the Court shall not
give Plaintiff the opportunity to submit another application
to proceed in forma pauperis in this case.
Prison Litigation Reform Act (“PLRA”) prohibits a
prisoner from bringing a civil action in forma
pauperis “if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United States
that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of
serious physical injury.” 28 U.S.C. § 1915(g).
Thus, under the statute, if a prisoner has three or more
dismissals under 28 U.S.C. § 1915(e), he cannot proceed
unless he is in imminent dangers of serious physical injury
at the time he files the complaint. See Goodson v.
Kardashian, 413 Fed.Appx. 417, 419 n.2 (3d Cir. 2011)
(per curiam) (citing Abdul-Akbar v. McKelvie, 239
F.3d 307, 312 (3d Cir. 2001)).
has filed, and the Court has dismissed,  at least three
earlier actions in this District as frivolous or for failing
to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B).
See Smart v. Admin. Office of the Courts, No.
14-4303, 2016 WL 632230, at *8 (D.N.J. Feb. 17, 2016)
(“Plaintiff's Amended Complaint is dismissed with
prejudice in its entirety for failure to state a claim,
pursuant to 28 U.S.C. § 1915(e)(2)(B).”),
aff'd sub nom., 672 Fed.Appx. 182 (3d Cir.
2017); Smart v. McLivaine, No. 14-4375, 2014 WL
6386768, at *2 (D.N.J. Nov. 14, 2014)(“[T]he complaint
will be dismissed with prejudice for failure to state a claim
upon which relief may be granted.”); Smart v.
Aramark Inc., No. 14-3007, 2014 WL 2215972, at *3
(D.N.J. May 29, 2014) (“Plaintiff's complaint will
be dismissed with prejudice, and this dismissal will be a
“strike” under the “three-strikes”
rule.”), aff'd, 618 Fed.Appx. 728, 728 (3d
Plaintiff is a litigant with three strikes under §
1915(g). Thus, § 1915(g) precludes him from proceeding
in forma pauperis in this case unless he alleges
facts to show that he is in imminent danger of serious
complaint in this case does not allege that Plaintiff is in
imminent danger of serious physical injury. Instead, the
complaint alleges first amendment claims for Defendants'
refusal to provide kosher diet meals, and for retaliating
when Plaintiff complained by transferring him to a different
county jail. Additionally, since Plaintiff currently resides
in a correctional facility in Camden, it appears that he no
longer resides at the offending facility in Maryland.
Consequently, because the complaint does not contain
sufficient allegations suggesting that Plaintiff is in
imminent danger of serious physical injury, he is not excused
from the § 1915(g) restrictions. Thus, the Court will
not permit Plaintiff to proceed in forma pauperis
and direct the Clerk to administratively terminate the case.
shall have an opportunity reopen this action by paying the
$400.00 filing fee within thirty days.