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

Case 1:08-cv-00462-JJF Document 4 Filed 08/13/2008 Page1 of3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IVAN L. MENDEZ, :
Plaintiff, Z
v. Z Civ. No. 08-462-JJF
JANE DOE a/k/a TALINA QUEEN, E
Defendant. ;
O R D E R
Plaintiff Ivan L. Mendez, an inmate at the James T. Vaughn
Correctional Center, filed this action pursuant to 42 U.S.C. §
1983. He proceeds prg se and has requested leave to proceed in
forma pauperis 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 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 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 in fgrma pauperis may file a new civil action or

Case 1:08-cv-00462-JJF Document 4 Filed 08/13/2008 Page 2 of 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. See
Mendez v. Delaware Corr. Ctr., Civ. No. 05-303-JJF (Dec. 1,
2005); Mendez v. Delaware Legal Sys., Civ. No. 05-304-JJF (Dec.
1, 2005); Mendez v. Delaware State, Civ. No. 05-305-JJF (Dec. 1,
2005); Mendez v. Delaware Psychiatric Ctr., Civ. No. 05-306-JJF
(Dec. 1, 2005). 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). After reviewing his
Complaint, the Court finds that it does not meet that standard.
Rather, Plaintiff filed this lawsuit in an attempt to gain
transfer to a different Delaware correctional facility. Based
upon the foregoing, Plaintiff is not excused from the
restrictions under § 1915(g), and he may not proceed in forma
pauperis.
THEREFORE, IT IS HEREBY ORDERED that:
1. Plaintiff’s Motion for Leave to Proceed In Egrma
Pauperis (D.I. 1) is DENIED.
2. Plaintiff is given thirty (30) days from the date of
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Case 1:08-cv-00462-JJF Document 4 Filed 08/13/2008 Page 3 of 3
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. § 1915(g).
Z ” I6 » 0 K B;
DATE UN D s TE ISTRICT G
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