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

Case 1:08-cv-00363-JJF Document 4 Filed 07/30/2008 Page1 0f3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IVAN L. MENDEZ, :
Plaintiff, ;
v. E Civ. No. 08-363-JJF
RUTH ANN MINNER, ;
Defendant. Z
O R D E R
Plaintiff Ivan L. Mendez, an inmate at the Delaware
Correctional Center (“DCC”), filed this action pursuant to 42
U.S.C. § 1983. He proceeds oro ao and has requested leave to
proceed ra forma pauoeris 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 ra 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. § 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 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. A prisoner who is

Case 1:08-cv-00363-JJF Document 4 Filed 07/30/2008 Page 2 of 3
not proceeding ie ferme 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. See
Mendez v. Delaware Corr. Ctr., Civ. No. 05-303-JJF (Dec. 1,
2005); Mendez v. Delaware Legal Sys., Civ. No. 05-304-JJF (Dec.
1, 2005); Mendez v. Delaware State, Civ. No. 05-305-JJF (Dec. 1,
2005); Mendez v. Delaware Psychiatric Ctr., Civ. No. 05-306-JJF
(Dec. 1, 2005). Therefore, Plaintiff may not file another civil
action ie ferme 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. Rather, Plaintiff complains of damages
sustained while he was at the Sussex Correctional Institution,
prior to his transfer to the DCC, and that his mandatory time was
due last year on December 23, 2007. For the above reasons,
Plaintiff is not excused from the restrictions under § 1915(g),
and he may not proceed ie ferme pauperis.
THEREFORE, IT IS HEREBY ORDERED that:
1. Plaintiff's Motion for Leave to Proceed Ie Eegme
Pauperis (D.I. 1) is DENIED.
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Case 1:08-cv-00363-JJF D0cument4 Filed 07/30/2008 Page30f3
2. Plaintiff is given thirty (30) days from the date of
this Order to pay the $350.00 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).
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