Free Order Denying IFP - District Court of Delaware - Delaware

Case 1:06-cv-00780-JJF Document 5 Filed O2/20/2007 Page1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IVAN L, MENDEZ, :
Plaintiff, ;
v. Z Civ. No. 06-780-JJF
THIS CRIMINAL ORGANIZATION, ;
Defendant. ;
O R D E R I
Plaintiff Ivan L. Mendez, an inmate at the Delaware
Correctional Center, filed this action pursuant to 42 U.S.C. § l
l983. He proceeds oro oo and has requested leave to proceed ro I
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 ro forma 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. § I915(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 l43 (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

Case 1:06-cv-00780-JJF Document 5 Filed 02/20/2007 Page 2 of 3
not proceeding in fggma 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. Sgg
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 fggmg 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. Therefore, he is not excused from
the restrictions under § 1915(g), and he may not proceed in fggmg
pauperis.
THEREFORE, at Wilmington this g}§2_day of February, 2007, IT
IS HEREBY ORDERED that:
1. Plaintiff’s Motion for Leave to Proceed Tp Eggma
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 1:06-cv-00780-JJF Document 5 Filed O2/20/2007 Page 3 of 3
pay the filing fee within that time, the Complaint shall be
dismissed pursuant t0 28 U.S.C. § l9l5(g).
C` Q
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U`N_I ED S T DISTRICT GE
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