Free Order (PLRA) Missing Documents - District Court of Delaware - Delaware

Case 1 :07-cv—00745-GIVIS Document 4 Filed 02/11/2008 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ABDULLAH G. HUBBARD, ROBERT, )
SAUNDERS, MEL MCCALISTER, )
NORMAN INGRAM, JAMES WILSON, )
DAVID T. SCOTT, MICHAEL BARTLEY,)
DAMON GIBSON, and BRYON )
WARNER, )
)
Plaintiffs, )
)
v. ) Civil Action No. 07-745-GMS
)
COMMISSIONER CARL DANBERG, )
DEPUTY COMMISSIONER THOMAS )
CARROLL, ACTING WARDEN BETTY )
BURRIS, RON HOLSTERMAN, MIKE )
LITTLE, CAPTAIN MICHAEL )
MCCRAMER, LT. MICHAEL TRADER, )
SUPERVISOR LEE LEPORE, )
SUPERVISOR JIM MASSIE, )
SUPERVISOR TERRY YODER, )
SUPERVISOR ED BOWERS, )
SUPERVISOR DAN ATHERHOLT, and )
SGT. MARVIN CRESEY, )
)
Defendants. )
ORDER
I. BACKGROUND
The plaintiffs, who proceed pro se, and who all are incarcerated, have filed this case
without prepayment of the filing fee and without requests to proceed without prepayment ofthe
filing fee pursuant to 28 U.S.C. § 1915. The plaintiffs are inmates at the Delaware Correctional
Center, Smyrna, Delaware and filed this lawsuit pursuant to 42 U.S.C. § 1983.
II. THREE STRIKES PROVISION
The Prison Litigation Reform Act ("PLRA") provides that a prisoner cannot bring a new

Case 1:07-cv—00745-G|\/IS Document 4 Filed 02/11/2008 Page 2 of 4
civil action or appeal a judgment in a civil action informa pauperzs 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 relief may be
granted. 28 U.S.C. § 19l5(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. A prisoner who
is not proceeding informa 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).
The court takes judicial notice that at least two of the plaintiffs, Robert Saunders, a/k/a
Shamisdin Ali ("Saunders"), and James Wilson ("Wilson"), while incarcerated, have tiled at
least three civil actions that were dismissed as frivolous, malicious or for failure to state a claim
upon which relief may be granted as follows: For Saunders, Saunders v. Neal, Civ. Action No.
91-697-LON (D. Del. Mar. 1, 1993); Saunders v. Risley, Civ. Action No. 89-545-JRR-SLR (D.
Del. July 15, 1991); Saunders v. Raskin, Civ. Action No. 86-035-LON (D. Del. Dec. 10, 1990);
Saunders v. Young, Civ. Action No. 88-014-JLL (D. Del. Nov. 28, 1990); Saunders v. Sullivan,
Civ. Action No. 86-525-LON (D. Del. Mar. 16, 1987); Saunders v. O’Neal, Civ. Action No. 86-
586-LON (D. Del. Feb. 12, 1987); Saunders v. Redman, Civ. Action No. 84-295-JLL (D. Del.
Mar. 17, 1986);and Saunders v. Young, Civ. Action No. 83-714-MMS (D. Del. Dec. 3, 1985).
For Wilson, Wilson v. McKeown, Civ. Action No. 00-378-GMS (D. Del. July 24, 2003); Wilson
v. Holman, Civ. Action No. 89-035—JJF, (D. Del. Apr. 24, 1989); Wilson v. Redman, Civ. Action
No. 85-477-MMS (D. Del. Dec. 13, 1985); Wilson v. Redman, Civ. Action No. 85-275-JLL (D.
-2-

Case 1:07-cv—00745-Gl\/IS Document 4 Filed 02/11/2008 Page 3 of 4
Del. June 11, 1985); and Wilson v. Redman, Civ. Action No. 84-212-JLL (D. Del. Oct. 22, 1984).
Accordingly, Saunders and Wilson may not file another civil action informa pauperis
while incarcerated unless are were in "imminent danger of serious physical injury" at the time of
the filing oftheir complaint. 28 U.S.C. § 1915(g); Abdul-Akbar v. McKelvie, 239 F.3d 307, 311
(3d Cir. 2001). The complaint does not meet that standard.
On January 4, 2008 Saunders submitted $250.00 towards the $350.00 filing. The partial
payment does not meet the filing fee obligation. Therefore, Saunders and Wilson will be given
thirty (30) days from the date of this order to pay the remaining $100.00 owed for the $3 50.00
filing fee.
III. APPLICATIONS TO PROCEED WITHOUT PREPAYMENT OF FEES
As discussed above, all plaintiffs filed this action without prepayment of the filing fee or
an application to proceed without prepayment of fees, and because Saunders and Wilson have
"three strikes" they are required to pay the filing fee pursuant to 28 U.S.C. § 1915. At this time,
however, it is unknown whether Saunders and/or Wilson will pay the filing fee in full.
Therefore, pursuant to the requirements of 28 U.S.C. § 1915(a)(1) and (2), and in order to
determine the schedule of payment of the filing fee, Abdullah G. Hubbard, Mel McCalister,
Norman Ingram, David T. Scott, Michael Bartley, Damon Gibson, and Bryon Warner, shall
submit to the Clerk of Court, a request to proceed informa paaperis and a certified copy of his
prison trust fund account statement (memorandum or institutional equivalent, with attachments)
showing all deposits, expenditures and balances during the six-month period immediately
preceding the filing of the complaint, obtained from the appropriate official at each institution at
which each plaintiff is confined.
-3-

Case 1:07-cv—00745-G|\/IS Document 4 Filed 02/11/2008 Page 4 of 4
III. SBI NUMBERS
The plaintiffs did not provide the court with their SBI numbers. Therefore, the court will
order all plaintiffs to provide the SBI numbers to the court within thirty days from the date of this
order.
IV. CONCLUSION
Based upon the foregoing,
l. Saunders and Wilson are given thirty (30) days from the date of this order to pay the
remaining $100.00 owed of the $350.00 filing fee. Failure by Saunders and/or Wilson to pay the
balance of the tiling fee within that time period, shall result in their dismissal as plaintiffs
pursuant to 28 U.S.C. § l9l5(g).
2. Abdullah G. Hubbard, Mel McCalister, Norman Ingram, David T. Scott, Michael
Bartley, Damon Gibson, and Bryon Warner, shall submit to the Clerk of Court, a request to
proceed informa pauperis and a certified copy of his prison trust fund account statement
(memorandum or institutional equivalent, with attachments) gipvyg all deposits, expenditures
and balances during the six-month period immediately preceding the tiling of the complaint. .
Failure of each plaintiff to return the requested information within 30 days from the date of this
order shall result in his dismissal from this action without prejudice.
3. All plaintiffs shall provide their SBI numbers to the court within thirty days from the
date of this order.
at arxiv
DATED:
// C70! €
at f ` 1= 1 1. E D {
-4-
FEB l l 2008
;__,___qj§§_1;lii?E§"é%’EfEv‘$2§E

Case 1:07-cv-00745-GMS

Document 4

Filed 02/11/2008

Page 1 of 4

Case 1:07-cv-00745-GMS

Document 4

Filed 02/11/2008

Page 2 of 4

Case 1:07-cv-00745-GMS

Document 4

Filed 02/11/2008

Page 3 of 4

Case 1:07-cv-00745-GMS

Document 4

Filed 02/11/2008

Page 4 of 4