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

Case 1:08-cv-00312-JJF Document 5 Filed 06/10/2008 Page1 of4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
SAMUEL BISHOP, :
Plaintiff, i
v. ; Civ. Action No. 08-312-JJF
C/O QUIERRA WILLIAMS, et al., ;
Defendants. Z
M MORANDUM ORDER
NOW THEREFORE, IT IS HEREBY ORDERED that:
Plaintiff’S Motion For Leave To Proceed In Fgrma Pauperis
(D.I. 1) is DENIED, for the reasons that follow:
Plaintiff, Samuel Bishop (“Plaintiff"), an inmate at the
Delaware Correctional Center, Smyrna, Delaware, filed this action
pursuant to 42 U.S.C. § 1983 alleging violations of his
constitutional rights. At the same time he filed a Motion For
Leave To Proceed In Fgrma Pauperis. (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

Case 1:08-cv-00312-JJF Document 5 Filed 06/10/2008 Page 2 of 4
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. Also, a prisoner who is not
proceeding ip fprma 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 more than three
civil actions that have been dismissed as frivolous or for
failure to state a claim upon which relief may be granted, as
follows: Bishop v. Goodwin, Civ. Action No. 94-189-JJF (D. Del.
Dismissed Apr. 22, 1994); Bishop v. Dickson, Civ. Action No. 94-
331-SLR (D. Del. Dismissed June 28, 1994); Bishop v. Snyder, Civ.
Action No. 94-350-RRM (D. Del. Dismissed June 28, 1994); Bishop
v. Pankowski, Civ. Action No. 94-361-RRM (D. Del. Dismissed July
7, 1994); Bishop v. Holland, Civ. Action No. 94-365-RRM (D. Del.
Dismissed July 11, 1994); Bishop v. Burton, Civ. Action No. 94-
367-RRM (D. Del. Dismissed July 8, 1994); Bishop v. Potts, Civ.
Action No. 94-368-RRM (D. Del. Dismissed July 11, 1994); Bishop
v. Burton, Civ. Action No. 94-369-RRM (D. Del. Dismissed July 13,
1994); Bishop v. Dickson, Civ. Action No. 94-550-JJF (D. Del.
Dismissed Nov. 23, 1994); Bishop v. Burton, Civ. Action No. 94-
628-LON (D. Del. Dismissed June 27, 1995); Bishop v. Redman, Civ.
Action No. 94-630-LON (D. Del. Dismissed June 27, 1995); Bishop
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Case 1:08-cv-00312-JJF Document 5 Filed 06/10/2008 Page 3 of 4
v. Howell, Civ. Action No. 94-675-SLR (D. Del. Dismissed Dec. 16,
1994); Bishop v. Marvel, Civ. Action No. 95-086-JJF (D. Del.
Dismissed Feb. 10, 1996); Bishop v. Bifferato, Civ. Action No.
95-204-SLR (D. Del. Dismissed Mar. 30, 1995); Bishop v. Hancock,
Civ. Action No. 95-229-JJF (D. Del. Dismissed Oct. 24, 1995);
Bishop v. Hawlk, Civ. Action No. 95-659-RRM (D. Del. Dismissed
Oct. 24, 1995); Bishop v. Mays, Civ. Action No. 96-087-JJF (D.
Del. Dismissed Feb. 21, 1996); and, Bishop v. Burries, Civ.
Action No. 97-214-JJF (D. Del. Dismissed Apr. 25, 1997). As a
result, Plaintiff may not file another civil action ip fpgmp
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).
Plaintiff filed his Complaint on May 22, 2008. He alleges
that Defendants failed to protect him when he was assaulted by a
fellow inmate on January 14, 2008. Plaintiff received medical
treatment as a result of the assault. Other allegations complain
of deprivation of personal property and Plaintiff’s housing
assignment. Plaintiff’s Complaint does not allege imminent
danger of serious physical injury at the time of the filing of
the Complaint. Hence, Plaintiff is not excused from the
restrictions under § 1915(g), and he may not proceed gp fppmp
pauperis.
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Case 1:08-cv-00312-JJF D0cument5 Filed 06/10/2008 Page40f4
For these reasons, Plaintiff’s Motion To Proceed Tn Forma
Pauperis is DENIED. Plaintiff shall, within thirty (30) days
from the date of this Order, 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. § i9i5(g>.
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DATE ED T ES DISTR UDGE
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