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

Case 1:07-cv—O0O26-SLR Document 5 Filed O2/08/2007 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
KEVIN D. DIXON, )
Plaintiff, )
v. ) Civ. No. O7—26—SLR
THOMAS L. CARROLL, et al., )
Defendants. )
ORDER
Plaintiff Kevin D. Dixon, SBI # 154239, an inmate at the
Delaware Correctional Center, filed this action pursuant to 42
U.S.C. § 1983. He proceeds pro se and has requested leave to
proceed in 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 in 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 in forma pauperis may file a new civil action or

Case 1:07-cv—00026-SLR Document 5 Filed 02/08/2007 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. §ee
Dixon v. Taylor, Civ. No. 05-756-SLR (D. Del. Jan. 11, 2006);
Dixon v. Dudleck, Civ. No. 94-81-RRM (D. Del. Mar. 1, 1994);
Dixon v. Dudleck, Civ. No. 93-594-SLR (D. Del. Dec. 29, 1993).
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. Accordingly, plaintiff is not excused from the
restrictions under § 1915(g), and he may not proceed in forma
pauperis.
THEREFORE, at Wilmington this ;E&;_day of February, 2007, IT
IS HEREBY ORDERED that:
1. Plaintiff's motion for leave to proceed in forma
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
pay the filing fee within that time, the complaint shall be
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Case 1:07-cv-00026-SLR D0cument5 Filed O2/08/2007 Page30f3
dismissed pursuant to 28 U.S.C. § 1915(g).
UNITED STAT§S DISTRICT JUDGE
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