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

Case 1:07-cv—00689-JJF Document 5 Filed 11/16/2007 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
. FOR THE DISTRICT OF DELAWARE
GBEKE MICHAEL AWALA, :
Plaintiff, E
v. i Civ. No. 07-689-***
JUDGE THEORDORE A. MCKEE, 3
et al., ;
Defendants. ;
M MDRANDUM ORDER
At Wilmington this JQ? day of November, 2007;
IT IS ORDERED that Plaintiff’s Application To Proceed In
Forma Pauperis (D.I. 1) is DENIED, for the reasons that follow:
1. Background. Plaintiff Gbeke Michael Awala (“Awala”), an
inmate at the U.S. Penitentiary Canaan, Waymart, Pennsylvania,
filed this action pursuant to 42 U.S C. § 1983 and 28 U.S.C. §
1331 alleging violations of his constitutional rights. Plaintiff
proceeds pro sg and has requested leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915. (D.I. 1.) He is a
frequent filer in this district.
2. Motion to Proceed lg Egggg Pauperis. 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 fgrma 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

Case 1:07-cv—00689-JJF Document 5 Filed 11/16/2007 Page 2 of 4
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 y
the PLRA (i.e., April 26, 1996) is counted when applying the V
"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. Also, 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.
19151g).
3. According to the United States Party/Case Index for the
Federal Courts, to date, and while a prisoner, Plaintiff has
filed over ninety civil actions in various federal district
courts across the country, and at least fifty appeals in various
federal appellate courts across the country. Many of those cases
have been dismissed as frivolous or for failure to state a claim
upon which relief may be granted, while others have been
dismissed for Plaintiff's failure to pay the filing fee due to
his status of filing more than three cases that were frivolous,
malicious, or failed to state a claim upon which relief may be
granted.
4. The cases dismissed as frivolous, malicious, or for
failure to state a claim upon which relief may be granted, are as
follows: Awala v. New Jersey Dep’t of Corr., No. 05-4899 (Bd
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Case 1:07-cv—00689-JJF Document 5 Filed 11/16/2007 Page 3 of 4
Cir. Jan. 31, 2007); Awala v. Regional Office Bureau of Prisons,
No. 05-5169 (3d Cir. June 5, 2006); Awala v. Federal Pub.
Defender, No. 05-4341 (3d Cir. Apr. 21, 2006); Awala v. Wachovia
Qggp., No. 05-3381 (3d Cir. Dec. 8, 2005); Awala v. People Who
Want to Restrict Our First Amendment Rights, No. 05-3863 (3d Cir.
Dec. 8, 2005); Awala v. 8 U.S.C. § 1326, C.A. No. 06-012-KAJ (D.
Del. Mar. 17, 2006); Awala v. Stretton, C.A. No. 05-472-KAJ (D.
Del. Mar. 3, 2006); Awala v. U.S. Congress, C.A. No. 05-307-KAJ
(D. Del. Dec. 15, 2005); Awala v. Delaware River and Bay Auth.
Police Dep’t, C.A. No. 05-97-KAJ (D. Del. Dec. 15, 2005); Ayala
v. State of New Jersey Dep’t of Corr., C.A. No. 05-2362FLW .
(D.N.J. Aug. 23, 2005); and Awala v. Federal Pub. Defender, C.A.
No. 05-CV—281-KAJ (D. Del. Aug. 5, 2005). As a result, Plaintiff
may not file another civil action aa fggma pauperis while
incarcerated unless he was 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).
5. Plaintiff’s Complaint does not meet that standard.
Rather, the Complaint complains of actions taken by three
appellate judges and the clerk of the court in the U.S. Court of
Appeals for the Third Circuit, and more particularly, that
Defendants “erroneously and unconstitutionally denied” a motion
Plaintiff filed in the Court of Appeals. Hence, Plaintiff is not
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Case 1:07-cv—00689-JJF Document 5 Filed 11/16/2007 Page 4 of 4
excused from the restrictions under § 19l5(g), he may not proceed
in forma Qguperis and, therefore, his application to proceed in
forma pauperis will be denied.
6. Conclusion. Based upon the foregoing analysis, the
Application To Proceed In Forma Pauperis (D.I. 1) is DENIED.
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 and
the case CLOSED pursuant to 28 U.S.C. § 1915(g).
Dgl 3`ED S@A DISTRIE¤E§ JUDGE
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