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

9 Document4 Fi|ed12/28/2007 Page10f3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE -
IVAN L. MENDEZ, :
Plaintiff, E
v. ; Civ. No. O7—800—JJF
MS. ANNETTE WRIGHT, ;
Defendant. ;
O R D E R
Plaintiff Ivan L. Mendez, an inmate at the Delaware
Correctional Center, filed this action pursuant to 42 U.S.C. §
1983. He proceeds oro so and has requested leave to proceed ro
rormo pauperis 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 in forma pauperis 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 E.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
not proceeding ro rormo pauperis may file a new civil action or

Case 1:07-cv-00800-JJF Document 4 Filed Page 2 of 3
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 in fggma 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. While he discusses a medical condition,
he seeks relief that does not speak to “imminent danger of
serious physical harm.” Indeed, Plaintiff asks the Court to make
his “ex—wife pay to [him] spousal support . . . and to pay for
the damages caused to [him]” while they were still married.
Based upon the foregoing, Plaintiff is not excused from the
restrictions under § 1915(g), and he may not proceed in fggma
pauperis.
THEREFORE, at Wilmington this £§§§ day of December, 2007, IT
IS HEREBY ORDERED that:
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Case 1:07-cv—00800-JJF Document 4 Filed 12/28/2007 Page 3 of 3
1. Plaintiff's Motion for Leave to Proceed in Forma
Pauperis (D.1. 1) is DENIED.
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. § 1915(g).
` T CLWAM i
UNI{{T D s` T ` Dismaic uoss
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