Free Order Denying IFP - District Court of Delaware - Delaware

Case 1:08-cv-00454-SLR Document 4 Filed 08/11/2008 Page1 of2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ALBERT JAMES BROWN, )
Plaintiff, g
v. g Civil Action No. 08-454-SLR
WARDEN PHIL MORGAN, et al., g
Defendants. g
ORDER
At Wilmington this & day of August, 2008,
1. Plaintiff Albert James Brown, SBI # 483775, an inmate at the Howard R.
Young Correctional Institution, filed this action pursuant to 42 U.S.C. § 1983. He
proceeds pro se and has filed an application to proceed without prepayment of fees
pursuant to 28 U.S.C. § 1915. (D.I. 1)
2. 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 ofthe 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 ruIe", when the prisoner is in
imminent danger of serious physical injury. A prisoner who is not proceeding in forma
pauperis may file a new civil action or appeal even if that prisoner has three or more

Case 1:08-cv-00454-SLR Document 4 Filed 08/11/2008 Page 2 of 2
dismissals described in 28 U.S.C. 1915(g).
3. Plaintiff, while incarcerated, has filed more than three civil actions that were
dismissed as frivolous, malicious or for failure to state a claim upon which relief may be
granted, as follows: Brown v. O’ConneII, Civ. No. 03-405-SLR (D. Del. Sept. 22, 2003);
Brown v. Kelsey, Civ. No. 04-299-SLR (D. Del. Apr. 27, 2005); Brown v. Kelsey, Civ.
No. 04-316-SLR (D. Del. Apr. 27, 2005). Therefore, he may not file another civil action
in forma pauperis while incarcerated unless he is in "imminent danger of serious
physical injury" at the time ofthe filing of his complaint. 28 U.S.C. § 1915(g);
Akbar v. McKelvie, 239 F.3d 307, 311 (3d Cir. 2001). Plaintiff alleges he slipped and
fell on water, injured himself, and received medical treatment. He alleges he continues
to have medical difficulties as a recent of injury. His complaint, however does not meet
the "imminent danger of physical injury" standard. Accordingly, he is not excused from
the restrictions under § 1915(g), and he may not proceed without prepayment of fees.
THEREFORE, IT IS HEREBY ORDERED that:
1. Plaintiffs application to proceed without prepayment of fees (D.l. 1) is denied.
2. Plaintiff shall pay the $350.00 filing fee within given thirty (30) days from the
date of this order. If plaintiff does not pay the filing fee within that time, the complaint
shall be dismissed pursuant to 28 U.S.C. § 1915(g).

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Document 4

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Case 1:08-cv-00454-SLR

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