Free Order on Motion for Reconsideration - District Court of Delaware - Delaware

Case 1:06-cv-00794-JJF Document 5 Filed O4/16/2007 Page1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IVAN L. MENDEZ, :
Plaintiff, E
v. E Civ. Action No. 06-794-JJF
PENNSYLVANIA STATE, et al., 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 oro oo. Now before the Court is Plaintiff's
Motion For Reconsideration of the Court’s March 21, 2007. (D.I.
4.) Contained within the Motion for Reconsideration is a Request
For Leave To Proceed ro Formo Pauperis pursuant to 28 U.S.C. §
1915. ro.
The Prison Litigation Reform Act (“PLRA”) provides that a
prisoner cannot bring a new civil action or appeal a judgment in
a civil action ro forgo 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 E
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 $
1
enactment of the PLRA (i.e., April 26, 1996) is counted when T
applying the "three strikes rule". Keener v. Pennsylvania Bd. of %
Probation & Parole, 128 F.3d 143 (Bd Cir. 1997). An exception is {
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Case 1:06-cv-00794-JJF Document 5 Filed 04/16/2007 Page 2 of 3
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
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. gaa
Mendez v. Delaware Corr. Ctr., Civ. Action No. 05-303-JJF (D.
Del. Dec. 1, 2005); Mendez v. Delaware Legal Sys., Civ. Action
No. 05-304-JJF (D. Del. Dec. 1, 2005); Mendez v. Delaware, Civ.
Action No. 05-305-JJF (D. Del Dec. 1, 2005); Mendez v. Delaware
Psychiatric Ctr., Civ. Action No. 05-306-JJF (D. Del. Dec. 1,
2005). Therefore, Plaintiff may not file another civil action fo
forma pauoeris 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 I
F.3d 307, 311 (3d Cir. 2001). His Complaint does not meet that 3
standard. Plaintiff is not excused from the restrictions under §
1915(g), and he may not proceed fo forma oauoeris.
The Court has reviewed Plaintiff’s Motion For Reconsider— R
ation of the March 21, 2007 order requiring Mendez to submit his i
application to proceed fo forma pauoeris and a copy of his prison I
trust fund account statement. (D.I. 4.) The Motion is l

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Case 1:06-cv-00794-JJF Document 5 Filed 04/16/2007 Page 3 of 3
frivolous, and the Court will deny it.
THEREFORE, at Wilmington this J@l_ day of April, 2007, IT IS
HEREBY ORDERED that;
1. Plaintiff’s Motion for Leave to Proceed In forma
Pauperis (D.I. 4) is DENIED.
2. Plaintiff’s Motion For Reconsideration (D.I. 4) is
DENIED.
3. 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
dismissed pursuant to 28 U.S.C. § 19l5(g).
j Caaoywa-
I ED 'TA S DISTRICT J
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