Free Order on Motion to Amend/Correct - District Court of Delaware - Delaware

Case 1 :06-cv-00001-GIVIS Document 44 Filed 11/07/2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JAMES W. RILEY, )
Plaintiff, g
v. ) Civ. No. 06-Ol-GMS
STANLEY TAYLOR, et al., g
Defendants. g
MEMORANDUM
I. BACKGROUND
James W. Riley ("Riley"), an inmate incarcerated at the Delaware Correctional Center,
Smyrna, Delaware, moved for, and was granted, leave to proceed informa pauperis. (D.I. I, 4.)
A $250.00 filing fee was assessed, but Riley had no assets or means to pay an initial partial filing
fee. Id. at D.I. 4. Nonetheless, the order provided for Riley to submit to the court an
authorization form allowing the agency having custody of him to forward payments for the filing
fee in the event that Riley later received funds. Defendants Correctional Medical Services, Inc.
("CMS")' and Medical Assistant Malaney ("Malaney") move the court to revoke Riley’s in
forma paaperis status and compel immediate payment of fees. (D.I. 28.) Also before the court is
Riley’s motion to correct the name of defendant CMS which the Court will grant. (D.I. 32.)
II. STANDARD OF REVIEW
The Prison Litigation Reform Act provides that a prisoner cannot bring a new civil action
or appeal ajudgment in a civil action informa paaperis 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
llncorrectly named as Correctional Medical Systems.

Case 1:06-cv—00001-Gl\/IS Document 44 Filed 11/07/2006 Page 2 of 4
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 Bal 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.
III. DISCUSSION
CMS and Malaney move to revoke Riley’s informa pauperis status on the basis that on at
least three other occasions, he had lawsuits dismissed as either frivolous or for failure to state a
claim upon which relief can be granted; specifically, 1:05-cv-00878-GMS; 1:01-cv-00695, and
1:00-cv—00-366. As Riley points out, the defendants are incorrect in their reliance on two of
these cases.
One ofthe cases, Riley v. Snyder, Civ. No. 00-366-JJF (D. Del. Apr. 3, 2000), was filed
as a habeas corpus action and hence, its dismissal does not count as a strike under 28 U.S.C. §
1915. While the case was dismissed and relief denied, it was not dismissed under the provisions
of 28 U.S.C. § 1915. Similarly, on appeal, the case was dismissed for lack ofjurisdiction and as
a successive habeas corpus petition, but not pursuant to 28 U.S.C. § 1915. See Riley v. Snyder,
Civ. No. 00-1702 (3d Cir. l\/lar. 29, 2001).
The other case, Riley v. Carroll, Civ. No. 05-878—GMS, was not dismissed until March
30, 2006, some two months after Riley was granted informa pauperis status in this case. There
is no provision in § 1915(g) to retroactively count a case dismissed as frivolous as a "strike" once
in forma pauperis status has been granted. Indeed, the statute is clear that the prisoner seeking in
forma paaperis must have had "three strikes" at the time he or she brings the civil action.
-2-

Case 1:06-cv—00001-Gl\/IS Document 44 Filed 11/07/2006 Page 3 of 4
(court ’s emphasis). Riley did not acquire his "second strike" until after he had filed this lawsuit
and until after he was granted informa pauperis status. Therefore, the court will deny
defendants’ motion to revoke Riley’s informa pauperis status.
IV. CONCLUSION
The court will deny the motion to revoke Riley’s informa pauperis status and to compel
immediate payment of filing fees. The court will grant the motion to correct the name of
defendant CMS. An appropriate order will be entered.
UNI S l¤ATES DIS JUDGE
Aim;. Z ,2006
Wilmington, Delaware F I I- E D
— F . J
us. msrmcr counr
oisrmcr or DELAWARE
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Case 1:06-cv—00001-Gl\/IS Document 44 Filed 11/07/2006 Page 4 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JAMES W. RILEY, )
Plaintiff, )
v. g Civ. N0. 06-Ol-GMS
STANLEY TAYLOR, et al., )
Defendants. g
ORDER
At Wilmington this Ji éay of A/l9•4 , 2006, for the reasons set forth in the
Memorandum issued this date
I . The motion to revoke Riley’s informa pauperis status and to compel immediate
payment of tiling fees (D.I. 28) is DENIED.
2. The motion to correct the name of Correctional Medical Systems to Correctional
Medical Services, Inc. (D.I. 32) is GRANTED. The clerk ofthe court is directed to amend the
court docket with the correct name, Correctional Medical Services, Inc.
F I L E D
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