Free Order on Motion for Leave to Proceed in forma pauperis - District Court of Delaware - Delaware

Case 1:07-cv-00162-JJF Document 4 Filed O4/O4/2007 Page1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IVAN L. MENDEZ, :
Plaintiff, i
v. E Civ. No. 07-162-JJF
THIS CRIMINAL ORGANIZATION, ;
Defendant. ;
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 oro aa and has requested leave to proceed fo
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 fa forma pauperis 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 fa forma pauperis may file a new civil action or

Case 1:07-cv-00162-JJF Document 4 Filed 04/04/2007 Page 2 of 4
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 forma 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(g); Abdul-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 fgrma
pauperis.
The Court also notes that Plaintiff filed a very similar
Complaint against the same Defendant in Civ. Action No. 06-780-
JJF. The Court considers the filing of the present Complaint
malicious. A complaint is malicious when it “duplicates
allegations of another [ ] federal lawsuit by the same
plaintiff.” Pittman v. Moore, 980 F.2d 994, 995 (5th Cir.1993);
gee glgg Banks v. Gillie, Civ. Act. No. 03-3098, 2004 U.S. Dist.
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Case 1:07-cv-00162-JJF Document 4 Filed 04/04/2007 Page 3 of 4
LEXIS 5413, at *9 (E.D. La. Feb. 25, 2004) (duplicative and
repetitive complaints are considered malicious for purposes of §
1915); McGill v. Juanita Kraft Postal Service, No. 3:03-CV-1113-
K, 2003 WL 21355439, at *2 (N.D. Tx. June 6, 2003) (complaint is
malicious when it “‘duplicates allegations of another pending
federal lawsuit by the same plaintiff' or when it raises claims
arising out of a common nucleus of operative facts that could
have been brought in the prior litigation”) (quotations omitted).
Finally, the Court notes that Plaintiff is filing his
pleadings in non-compliance with the Local Rules. He has filed
pleadings on large manilla envelopes, on toilet paper, on white
looseleaf paper written crosswise 11” by 8%” as opposed to the
normal 8%" by 11", and he uses the front and back of the same
sheet of paper. Plaintiff is placed on notice that he is to
abide by Local Rule 5.1.1 of this Court in the filing of future
pleadings. A copy of the Rule is enclosed with this Order.
Plaintiff is further advised that failure to comply with the
Local Rules may result in the striking of his pleadings.
THEREFORE, at Wilmington this _ji_ day of April, 2007, IT IS
HEREBY ORDERED that:
1. Plaintiff’s Motion for Leave to Proceed In Fgrmg
Pauperis (D.I. 1) 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
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Case 1:07-cv-00162-JJF Document 4 Filed O4/O4/2007 Page 4 of 4
pay the filing fee within that time, the Complaint shall be
dismissed pursuant to 28 U.S.C. § 1915(g).
.i· ‘st
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