Biggins v. Minner et al

Filing 5

MEMORANDUM ORDER- 1. The Plaintiff's motion for leave to proceed in forma pauperis is denied (D.I. 1.). 2. The Plaintiff is given thirty (30) days from the date of this order to pay the $400.00 filing fee. If the Plaintiff does not pay the filing fee within that time, the complaint shall be dismissed. Signed by Judge Gregory M. Sleet on 12/19/2017. (crb)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

JAMES ARTHUR BIGGINS,

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Plaintiff,

) Civ. Action No. 17-1739-GMS
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v.

MA TT DENN, et aI.,

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Defendants.

At Wilmington this

f't

11

MEMORANDUM ORDER

day of

k

,2017;

IT IS HEREBY ORDERED that:
1.

The plaintiff James Arthur Biggins ("Biggins") filed a complaint on December 4,

2017, alleging violations of his constitutional rights. (D.1. 3.) Biggins, an inmate, is housed at
the James 1. Vaughn Correctional Center, Smyrna, Delaware. He appears pro se and moves for
leave to proceed in forma pauperis. (D.L 1.)
2.

The Prison Litigation Reform Act provides that a prisoner cannot bring a new

civil action or appeal a judgment 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. 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).
3.

Biggins, 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
Biggins v. Danberg, Civ. No. 1O-732-GMS (D. Del. Jan. 15,2013) (dismissed as frivolous);
Biggins v. Seaton, Civ. No. 1O-1488-PJM (D. Md. June 11,2010) (dismissed for failure to state a
claim; Biggins v. Markell, Civ. No. 09-245-GMS (D. Del. Feb. 9, 2011) (dismissed as frivolous);
Biggins v. Campbell, Civ. No. 99-872-GMS (D. Del. May 2, 2001) (dismissed as frivolous);
Biggins v. Withers, Civ. No. 98-438-LON (D. Del. Oct. 22, 1998) (dismissed as frivolous).
Therefore, Biggins may not file another civil action injorma 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). Despite his
contention of "imminent danger", after reviewing his pleading the court concludes that it does
not meet that standard. Based upon the foregoing, Biggins is not excused from the restrictions
under § 1915(g), and he may not proceed in forma pauperis.
THEREFORE, IT IS HEREBY ORDERED that:
1.

The plaintiffs motion for leave to proceed in forma pauperis is denied. (D.I. 1.)

2.

The plaintiff is given thirty (30) days from the date of this order to pay the

$400.00 filing fee. If the plaintiff does not pay the filing fee within that time, the complaint
shall be dismissed pursuant to 28 U.S.C. § 1915(g).

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