UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JAMES ANTHONY BARNES, :

: Civil Action No. 11-3763 (FLW)

Plaintiff, :

:

v. : MEMORANDUM OPINION

:

7-ELEVEN, :

:

Defendant. :

APPEARANCES:

JAMES ANTHONY BARNES, Plaintiff pro se

#507188

Mercer County Correction Center

P.O. Box 8068

Lambertville, New Jersey 08610

WOLFSON, District Judge

Plaintiff James Anthony Barnes, a state inmate presently

confined at the Mercer County Detention Center in Lambertville,

New Jersey, seeks to bring this civil action in forma pauperis,

pursuant to 28 U.S.C. § 1915. For the following reasons,

Plaintiff’s request to proceed in forma pauperis will be denied. 

BACKGROUND

Plaintiff’s Complaint alleges an unintelligible claim

against the 7-Eleven located on South Olden Avenue in Trenton,

New Jersey. Plaintiff appears to allege that the store failed to

provide proper customer service by stealing money off Plaintiff’s

food stamp card and attempting to assault Plaintiff with a

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baseball bat. The alleged incident occurred on September 13,

2010. The Complaint makes further incomprehensible, rambling and

incoherent allegations difficult for this Court to decipher,

which appear to involve unidentified persons and unrelated

incidents. Plaintiff attaches unrelated grievance forms, which

also are incomprehensible. He does not indicate the relief he

seeks.

DISCUSSION

Plaintiff seeks to proceed with this action in forma

pauperis, pursuant to 28 U.S.C. § 1915.

The Prison Litigation Reform Act of 1995 (“PLRA”), enacted

on April 26, 1996, prohibits a prisoner from bringing a civil

action in forma pauperis pursuant to 28 U.S.C. § 1915 “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); see also Keener

v. Pennsylvania Board of Probation & Parole, 128 F.3d 143, 144-45

(3d Cir. 1997) (holding that frivolousness dismissals prior to

enactment of PLRA count as "strikes" under § 1915(g)). A

prisoner who has three or more such dismissals may be excused

from this rule only if he is "under imminent danger of serious

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physical injury." Id. When deciding whether an inmate meets the

“imminent danger" requirement, a court must examine the situation

faced by the inmate at the time of the filing of the complaint,

and a showing of danger in the past is insufficient to

demonstrate “imminent danger.” Abdul-Akbar v. McKelvie, 239 F.3d

307, 312 (3d Cir. 2001).

An examination of court records reveals plaintiff has filed

numerous civil actions in the District of New Jersey. At least

three of these actions have been dismissed under 28 U.S.C. §§

1915(e)(2) and 1915A. See, e.g., Barnes v. Mercer County Court

House, Civil No. 07-1194 (FLW); Barnes v. Trenton State Prison

Medical Department, Civil No. 09-1604 (GEB); Barnes v. Trenton

Police Department, Civil No. 09-5934 (JAP).

Accordingly, Plaintiff has reached the statutory limit as

set forth in 28 U.S.C. § 1915(g) and is precluded from seeking in

forma pauperis status based on the “three strikes” rule unless he

alleges facts to show that he is in “imminent danger of serious

physical injury”, which would excuse him from the restrictions

under § 1915(g).

In his Complaint, Plaintiff makes no allegations or claims

of “imminent danger.” Rather, the Complaint appears to involve 

a past incident occurring at the 7-Eleven store on September 13,

2010. Plaintiff is currently incarcerated. As referenced above,

the threat of imminent danger must be prospective and cannot

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relate to a past incident of harm as alleged here. See AbdulAkbar, 239 F.3d at 312. Therefore, because the Complaint in this

action does not contain sufficient allegations reasonably

suggesting that Plaintiff is in “imminent danger of serious

physical injury”, which would excuse him from the restrictions

under § 1915(g), Plaintiff may not proceed in forma pauperis. 

This Court makes no findings as to whether or not Defendant

has violated any state or federal law, or otherwise violated

Plaintiff’s constitutional rights. However, this Court finds

that Plaintiff has not demonstrated “imminent danger” in order to

override the “three strikes” requirement of § 1915(g).

CONCLUSION

Based on the foregoing, Plaintiff’s request to proceed

in forma pauperis will be denied, pursuant to 28 U.S.C. §

1915(g). As set forth in the accompanying Order, Plaintiff’s

case will be administratively terminated. Upon submission of the

filing fee within 30 days, Plaintiff may move to reopen his case,

if he so chooses. 

 S/Freda L. Wolfson 

FREDA L. WOLFSON

United States District Judge

Dated: July 20, 2011

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