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

Case 1:06-cv—00022-KAJ Document 5 Filed 03/17/2006 Page1 of2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
BILLY TYLER, )
Plaintiff, g
v. g Civ. N0. 06-22-KAJ
UNION PACIFIC RAILROAD g
COMPANY, )
Defendant. g
ORDER
1. Plaintiff, Billy Tyler ("Tyler"), a pro se litigant who is presently incarcerated
in the Nebraska Department of Corrections, brings this action against Union Pacific
Railroad Company. Jurisdiction is based upon diversity pursuant to 28 U.S.C. § 1332.
Tyler requested, and was granted, leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. (D.I. 1, 4).
2. 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 or
she 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 priorto the enactment ofthe 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.
3. A prisoner who is not proceeding in forma pauperis may file a new civil

Case 1:06-cv—00022-KAJ Document 5 Filed 03/17/2006 Page 2 of 2
action or appeal even if that prisoner has three or more dismissals described in 28
U.S.C.1915(g).
4. lt has come to the Court’s attention that Tyler, while incarcerated, has filed
in excess of 90 lawsuits in the Federal District Court in the District of Nebraska. See
Tyler v. Haas. Civ No. 05-4050 (D.S.D. May 6, 2005). More than three civil actions filed
by Tyler while incarcerated were dismissed as frivolous, malicious, or for failure to state
a claim upon which relief may be granted: Tyler v. Haas, Civ. No. 05-4050 (D.S.D. May
6, 2005); Tyler v. Clarke, Civ. No. 266-RGK-PRSE (D.Neb. June 10, 2004); Tyler v.
Clarke, Civ. No. 04-215-JFB-PRSE (D.Neb. June 7, 2004); Tyler v. Britten, Civ. No. 03-
3273-RGK-PRSE (D.Neb. Apr. 22, 2004); Tyler v. Stennes—Wllllams, Civ. No. 03-310-
LSC-PRSE (D.Neb. Sept. 4, 2003).
5. Accordingly, Tyler may not file another civil action in forma pauperls 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. ll/lcKelvle, 239 F.3d
307, 311 (3d Cir. 2001). Ty|er’s complaint does not meet that standard.
6. Based upon the foregoing, the Court VACATES its January 19, 2006,
order (D.I. 4) and DENIES Ty|er’s motion for leave to proceed in forma pauperis. (D.I.
1). Tyler, however, is given thirty (30) days from the date of this order to pay the
$250.00 filing fee. If Tyler does not pay the tiling fee within that time, the complaint
shall be dismissed pursuant to 28 U.S.C. § 1915(g).
. .D%z
DATED: March 17, 2006 U IT ST T SDISTRICT JUDGE
Wilmington, Delaware y 2