Biggins v. Gile et al

Filing 5

MEMORANDUM ORDER- denying 1 Motion for leave to proceed in forma pauperis. Plaintff has filed at least 3 actions that were dismissed as frivolous, malicious, or for failure to state a claim, and plaintiff does not claim to be in imminent danger. Pl aintiff has 30 days to reinstate this action by paying the $350.00 filing fee. Failure to submit filing fee shall result in dismissal. (Copy to pltf. with Mag. Consent Form)( Notice of Compliance deadline set for 7/18/2011.) Signed by Judge Gregory M. Sleet on 6/13/2011. (ksr)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

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JAMES ARTHUR BIGGINS,
Plaintiff,

) Civ. Action No. 11-365-GMS
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v.

SGT. GEORGE GILE, et aI.,
Defendants.

MEMORANDUM ORDER

t~

r-o.

At Wilmington this I ) day of<:J ~

, 2011;

IT IS ORDERED that the plaintiffs motion for leave to proceed in forma pauperis (D.I. 1)
is denied, for the reasons that follow:
The plaintiff, James Arthur Biggins, ("Biggins"), an inmate at the James T. Vaughn
Correctional Center, Smyrna, Delaware, filed this complaint pursuant to 42 U.S.C. § 1983.
Biggins proceeds pro se and has submitted an application for leave to proceed without
prepayment of fees. (D.I. l.)
The Prison Litigation Reform Act ("PLRA") provides that a prisoner cannot bring a new
civil action or appeal ajudgment in a civil action in forma pauperis ifhe 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 ofProbation &

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

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).
According to Court records, while incarcerated, Biggins 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: Biggins v. Campbell, Civ. Action No. 99-872-GMS (D. Del. May 2,

2001); Biggins v. Snyder, Civ. Action No. 01-095-GMS (D. Del. May 2, 2001); Biggins v. Snyder,
Civ. Action No. 99-112-GMS (D. Del. Aug. 24, 2000); Biggins v. Maryland Dist. Court, Civ.
Action No. 99-476 (D. Del. Mar. 4, 1999); and Biggins v. Withers, Civ. Action No. 98-438-LON
(D. Del. Oct. I, 1998).
As a result, Biggins may not file another civil action in forma 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).
His complaint does not meet that standard. Hence, Biggins is not excused from the restrictions
under § 1915(g).
Based upon the foregoing analysis, the motion to proceed in forma pauperis (D.I. I) is

denied. Biggins is given thirty (30) days from the date of this order to pay the $350.00 filing fee.
If Biggins does not pay the filing fee within that time, the complaint shall be dismissed and the
case closed pursuant to 28 U.S.C. § 1915(g).

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