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

Case 1:04-cv-01441-JJF Document 8 Filed O3/O3/2005 Page1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
RONALD E. PROCTOR, JR., )
Plaintiff, g
v. g Civil Action No. 04-1441-JJF
C/O BOSTON, C/O WATSON, g
SGT. WASHINGTON, MAJOR )
CUNNINGHAM, and DR. JOHN DOE, )
Defendants. g
ORDER
1. Plaintiff Ronald E. Proctor, Jr., SBI #163750, a
prg se litigant who is presently incarcerated, has filed this
action pursuant to 42 U.S.C. § 1983.
2. Plaintiff alleges that on November 10, 2002,
Defendants, Correctional Officer Boston and Correctional Officer
Watson, used excessive force against him during a “shakedown”
search of his cell, and broke two of his ribs, as well as his
right shoulder. (D.I. 4 at 3) Plaintiff further alleges that he
was denied medical treatment by Defendant, Dr. John Doe, and
placed in isolation by Defendant Major Cunningham. (IQ; at 4)
3. Under 28 U.S.C. § 19l5(g), a prisoner cannot bring
a new civil action or appeal a judgment in a civil action in
fgrma pauperis if he or she has three or more times in the past,
while incarcerated, brought a civil action or appeal in federal

Case 1:04-cv-01441-JJF Document 8 Filed O3/O3/2005 Page 2 of 3
court that was dismissed because it was frivolous, malicious, or
failed to state a claim upon which relief may be granted. The
only exception to this is if the prisoner is in imminent danger
of serious physical injury. A prisoner who is 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).
4. Regardless of whether a prisoner proceeds in forma
pauperis in a civil case, if at any time the prisoner's case is
dismissed as frivolous or malicious, or for failure to state a
claim upon which relief may be granted, the dismissal will count
against the prisoner for purposes of the three—dismissal rule in
28 U.S.C. § 1915(g). In Keener v. Pennsylvania Bd. of Prob. &
Parole, 128 F.3d 143 (3d Cir. 1997), the Court held that
dismissal as frivolous prior to the Prisoner Litigation Reform
Act’s enactment count towards the "three strikes" rule.
5. Plaintiff, while incarcerated, has filed at least
six (6) civil actions that have been dismissed as frivolous or .
for failure to state a claim upon which relief may be granted.
See Proctor v. Scott, Civil Action No. 88-415-MMS (dismissed
December 12, 1988); Prggggg _p_g v. Watson, Civil Action No. 88-417-
MMS (dismissed December 12, 1988); Proctor v. Haley, Civil Action
No. 88-418-MMS (dismissed December 12, 1988); Proctor v.
Avanzato, Civil Action No. 88-420-MMS (dismissed December 12,
2

Case 1:04-cv-01441-JJF Document 8 Filed O3/O3/2005 Page 3 of 3
1988); Proctor v. Gaddis, Civil Action No. 88-421-MMS (dismissed
December 12, 1988); and Proctor v. Brasure, Civil Action No. Ol-
013-JJF (dismissed January 8, 2001). Therefore, Plaintiff may
not file another civil action ra forma oauperis while
incarcerated unless he is in "imminent danger of serious physical
injury." 28 U.S.C. § 1915(g). The present Complaint does not
meet that standard.
6. Plaintiff’s motion for leave to proceed ra rorma
oauoeris is denied. However, Plaintiff is given thirty (30) days
from the date this order is sent to pay the $150.00 filing fee.
If Plaintiff does not pay the filing fee within that time, the
Complaint shall be dismissed pursuant to 28 U.S.C. § l9l5(g).
» { » ¤-~»-~s~
DATED: _?fQ>{$ §` Un t·• Stjtes Histrict Ju:ge
3