Free Order (PLRA) Three Strikes - District Court of Delaware - Delaware

Case 1:07-cv-00236-JJF Document 4 Filed 05/25/2007 Page1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IVAN L. MENDEZ, :
Plaintiff, E
v. i Civ. Action No. 07-236-JJF
THIS CRIMINAL ORGANIZATION, E
Defendants. E
O R D E R
Plaintiff Ivan L. Mendez, an inmate at the Delaware
Correctional Center, filed this action pursuant to 42 U.S.C. §
1983. He proceeds pro oo and has requested leave to proceed rg
forma pauperis pursuant to 28 U.S.C. § 1915. (D.I. 1.)
The Prison Litigation Reform Act (“PLRA”) provides that a
prisoner cannot bring a new civil action or appeal a judgment in
a civil action rg forgo oauperis if he has three or more times in
the past, while incarcerated, brought a civil action or appeal in
federal court that was dismissed as frivolous, malicious, or for
failure to state a claim upon which relief may be granted. 28
U.S.C. § 1915(g). A case dismissed as frivolous prior to the
enactment of the PLRA (i.e., April 26, 1996) is counted when
applying the "three strikes rule". Keener v. Pennsylvania Bd. of
Probation & Parole, 128 F.3d 143 (3d Cir. 1997). An exception is
made to the “three strikes rule", when the prisoner is in
imminent danger of serious physical injury. A prisoner who is
not proceeding ro form; pauperis may file a new civil action or

Case 1:07-cv-00236-JJF Document 4 Filed 05/25/2007 Page 2 of 3
appeal even if that prisoner has three or more dismissals
described in 28 U.S.C. 1915(g).
Plaintiff, while incarcerated, has filed more than three
civil actions that have been dismissed as frivolous or for
failure to state a claim upon which relief may be granted. See
Mendez v. Delaware Correctional Center, Civ. No. 05-303-JJF (Dec.
1, 2005); Mendez v. Delaware Legal System, Civ. No. 05-304-JJF
(Dec. 1, 2005); Mendez v. Delaware State, Civ. No. 05-305-JJF
(Dec. 1, 2005); Mendez v. Delaware Psychiatric Center, Civ. No.
05-306-JJF (Dec. 1, 2005). Therefore, Plaintiff may not file
another civil action in fgrma pauperis while incarcerated unless
he is in "imminent danger of serious physical injury" at the time
of the filing of his complaint. 28 U.S.C. § 1915(9); Abdu1—Akbar
v. McKelvie, 239 F.3d 307, 311 (3d Cir. 2001). His Complaint
does not meet that standard. He is not excused from the
restrictions under § 1915(g), and he may not proceed in fgrmg
pauperis.
{f'
THEREFORE, at Wilmington this QQQQ day of May, 2007, IT IS
HEREBY ORDERED that:
1. Plaintiff’s Motion for Leave to Proceed In Egrma
Pauperis (D.I. l) is DENIED.
2. Plaintiff is given thirty (30) days from the date of
this order to pay the $350.00 filing fee. If Plaintiff does not
pay the filing fee within that time, the Complaint shall be
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Case 1:07-cv-00236-JJF Document 4 Filed 05/25/2007 Page 3 of 3
dismissed pursuant to 28 U.S.C. § l9l5(g).
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