Free Order on Motion for Leave to Proceed in forma pauperis - District Court of Delaware - Delaware

Case 1:06-cv-00418-JJF D0cument4 Filed 07/27/2006 Page1 0f3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
RONALD E. PROCTOR, JR., )
Plaintiff, )
v. g Civ. No. 06-418-JJF
RICK KEARNEY, et al., )
Defendants. )
O R D E R
Plaintiff Ronald E. Proctor, Jr., an inmate at the Delaware
Correctional Center, filed this action pursuant to 42 U.S.C. §
1983. He proceeds pro so and has requested leave to proceed ro
rormo oauperis 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 ro rormo pauoeris 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 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 ro rormo oauperis may file a new civil action or

Case 1:06-cv-00418-JJF Docurnent 4 Filed 07/27/2006 Page 2 0f 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. gee
Proctor v. Brasure, Civ. No. 01-013-JJF (D.Del. Jan. 8, 2001);
Proctor v. Gaddis, Civ. No. 88-421-MMS (D.Del. Dec. 12, 1988);
Proctor v. Avanzato, Civ. No. 88-420-MMS (D.Del. Dec. 12, 1988);
Proctor v. Haley, Civ. No. 88-418-MMS (D.Del. Dec. 12, 1988);
Proctor v. Watson, Civ. No. 88-417-MMS (D.Del. Dec. 12, 1988);
and Proctor v. Scott, Civ. No. 88-415-MMS (D.Del. Dec. 12, 1988).
Therefore, Plaintiff may not file another civil action in fgrma
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.
Plaintiff filed his complaint alleging denial of access to
the courts because he was denied forms to petition the courts.
He also alleges that he is charged twenty—five cents per page for
the forms. Plaintiff alleges in a conclusory fashion that his
“claims are imminent danger exceptions,” but he has failed to
allege any facts to show that at the time of the filing of his
complaint he was in “imminent damage of serious physical injury.”
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Case 1:06-cv—00418-JJF Document 4 Filed 07/27/2006 Page 3 of 3
(D.I. 2, M3.) Therefore, he is not excused ffam the restrictions
under § 19l5(g), and he may not proceed in fgrma pauperis.
IT IS ORDERED that:
l. Plaintiff's Motion for Leave to Proceed In Egrma
Pauperis (D.I. l) 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. § l9l5(g).
UNIT sr TE .DISTRICT J GE
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