Free Order on Motion to Compel - District Court of Delaware - Delaware

Case 1 :04-cv-01385-GIVIS Document 33 Filed 02/27/2007 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JACK WILLIAM WOLF, Pro Se, )
Plaintiff, )
v. ) C.A. No. 04-1385 (GMS)
THOMAS CARROLL, et al., )
Defendants. )
ORDER
1. The plaintiff, Jack William Wolf, SBI #93532, a pro se litigant who is presently
incarcerated, has filed this action pursuant to 42 U.S.C. § 1983 and has been previously
granted leave to proceed informa paaperis pursuant to 28 U.S.C. § 1915. (D.I. 4.)
2. Presently before the court is the defendants’ Motion to Compel Immediate Payment of
Full Filing Fees and for Related Relief (D.I. 30.)
3. The Prison Litigation Reform Act ("PLRA") 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 as frivolous, malicious, or for failure to state a claim upon which
reliefmay be granted. 28 U.S.C. § l9l5(g). An exception is made to the three strikes
rule when the prisoner is in imminent danger of serious physical injury. Id.
4. Mr. Wolf, while incarcerated, has filed at least three civil actions that were dismissed as
frivolous, malicious or for failure to state a claim upon which relief may be granted: Woy
v. Laferzy, et. al., C.A. No. OO-374-JIF (dismissed Sept. 5, 2000), Woyv. Funk, C.A. No.

Case 1:04-cv—01385-Gl\/IS Document 33 Filed 02/27/2007 Page 2 of 3
00-427-JJF (dismissed July 9, 2001); Wobfv. I/Wndslow, et al., C.A. No. 00-428-JJF
(dismissed July 9, 2001). These cases were dismissed before Mr. Wolf filed the above-
captioned lawsuit on October 25, 2004. Mr. Wo1f`s present complaint, however, alleges
that he was assaulted by three prison guards and that he has been consistently denied
medical care. (D.I. 2.)
5. The Federal Rules of Civil Procedure only require that a short and plain statement of the
claim be made and courts have consistently held that pleadings are to be interpreted
liberally. See FED. R. CIV. P. 8(a)(2); Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit, 507 U.S 163, 168 (1993). The Third Circuit Court of
Appeals has instructed district courts to evaluate the allegations in a complaint tiled by a
pro se prisoner facing a § 1915(g) bar under its liberal pleading rules, construing all
allegations in favor of the complainant and crediting those allegations of "imminent
danger" that have gone unchallenged. See Gibbs v. Cross, 160 F.3d 962, 966 (3d Cir.
1998).
5. The court concludes that Mr. Wolf adequately alleged that, at the time he filed his
complaint, he was under imminent danger of serious physical injury. See I/Wlliams v.
Forte, No. 04-2071, 135 Fed. Appx. 520 (3d Cir. 2005). Although the defendants dispute
the applicability ofthe § 1915(g) exception in Mr. Wolfs case, the defendants provide
nothing more than a conclusory challenge without addressing the merits of Mr. Wolf’s
assertions. (D.I. 29.) The court acknowledges that Mr. Wolf` s release from prison may
be imminent, however, the standards set forth in §l915(g) require the court to evaluate
the factors for the imminent danger exception at the time the complaint is filed. 28
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Case 1:04-cv—01385-Gl\/IS Document 33 Filed 02/27/2007 Page 3 of 3
U.S.C. § 1915(g); Abdul—A/cbar v. McKe/vie, 239 F.3d 307, 311 (3d Cir. 2001). Since Mr.
Wolfs complaint met the criteria for the imminent danger exception when he filed suit,
he will be allowed to remain informa pauperis.
IT IS HEREBY ORDERED that:
The defendants’ motion (D.I. 30) is DENIED without prejudice.
Dated:Februa13/@,2007 ¢ 2l— { E l l
UNI STATES DISTRICT JUDGE
F I L E D
Q 2 Y EC!-Tl?
us. msmicr counr
oisrmcr OF DELAWARE
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