Free Order - District Court of Delaware - Delaware

Case 1:08-cv-00020-SLR Document 10 Filed 05/13/2008 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DEMETRIUS BAILEY, )
Plaintiff, g
v. g Civ. No. 08-020-SLR
STREET KNOWLEDGE PLIBLISHING, g
Defendant. ;
ORDER
At Wilmington this @ day of May, 2008,
Plaintiff, Demetrius Bailey ("pIaintiff”’), Pennsylvania Prison No. CP7819, a pro se
Iitigant who is presently incarcerated, filed this action on January 10, 2008. Plaintiff
requested, and was granted, leave to proceed without prepayment of fees pursuant to
28 U.S.C. § 1915. (D.I. 4) In the section ofthe complaint that asked for a listing of
other federal lawsuits filed, plaintiff replied "N/A." (D.I. 2.) It has come to the court’s
attention that, in the past, plaintiff has filed several federal lawsuits.
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 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. § 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 ruIe". 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

Case 1:08-cv-00020-SLR Document 10 Filed 05/13/2008 Page 2 of 3
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
dismissals described in 28 U.S.C. 1915(g).
Plaintiff, while incarcerated, has filed 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: Bailey v. Crisanti, C.A. No. 00-4334 (3d Cir. Dec. 6, 2001); Bailey v.
_C , Civ. No. 00-1310-DEZ-IJS (W.D. Pa. Nov. 22, 2000); Bailey v. Price, Civ. No.
99-470-DEZ-IJS (W.D. Pa. Dec. 22, 1999). Additionally, as recently as March 13,
2008, the United States District Court for the Eastern District of Pennsylvania denied
plaintiff leave to proceed without prepayment of fees pursuant to 28 U.S.C. § 1915(g)
on the basis that he had filed at least three civil actions or appeals that were dismissed
as frivolous or for failure to state a claim upon which relief may be granted. g @y
v. Beard, Civ. No. 07-3723-TON (E.D. Pa. Mar. 13, 2008). Accordingly, plaintiff may
not file another civil action without prepayment of fees while incarcerated unless he was
in "imminent danger of serious physical injury" at the time of the tiling of his complaint.
28 U.S.C. § 1915(g); Abdul-Akbar v. McKelvie, 239 F.3d 307, 311 (3d Cir. 2001). The
complaint does not meet this standard. Rather, it alleges false advertising, theft by
deception, and defamation.
IT IS THEREFORE ORDERED as follows:
1. The January 18, 2008 order (D.I. 4) is vacated.
2. The plaintiffs motion for leave to proceed without prepayment of fees (D.l. 1)
is denied.
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3. Plaintiff is given thirty (30) days from the date of this order to pay the $350.00
filing fee. lf he does not pay the filing fee within that time, the complaint shall be
dismissed pursuant to 28 U.S.C. § 1915(g).
4. Plaintiffs motion to appoint counsel is denied without prejudice. (D.l. 5.)
5. Plaintiffs motion to make sen/ice is denied. (D.l. 9.)
UNITED STATEQ DISTRICT JUDGE
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