AVILA v. STATE OF NEW JERSEY ex rel.

Filing 2

MEMORANDUM OPINION and ORDER denying Plaintiffs application to proceed in forma pauperis; Administratively terminating this action; Ordering that Plaintiff may have this case reopened, if Plaintiff prepays the filing fee within 30 days of entry of this Memorandum Opinion and Order. Signed by Judge Joel A. Pisano on 2/14/2013. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

:
ABDIEL F. AVILA,
:

Civil Action No. 13-0779 (JAP)

Plaintiff,
:
v.
:

MEMORANDUM OPINION & ORDER

STATE OF NEW JERSEY, et al.,
:
Defendants.
___________________________________

1.

Plaintiff Abdiel F. Avila (“Plaintiff”), a state inmate presently confined at the New Jersey
State Prison, submitted for filing his civil complaint (“Complaint”) accompanied by his
application to prosecute the same in forma pauperis, pursuant to 28 U.S.C. § 1915. See
Docket Entry No. 1. Plaintiff’s Complaint named as Defendants in this matter the State of
New Jersey, the State’s Attorney General, and the Commissioner of the State’s Department
of Corrections. See id.

2.

The Prison Litigation Reform Act of 1995 (“PLRA”), enacted on April 26, 1996, prohibits
a prisoner from bringing a civil action in forma pauperis, pursuant to 28 U.S.C. § 1915, “if
the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United States that was dismissed on the grounds
that it is frivolous, malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. §
1915(g); see also Keener v. Pennsylvania Board of Probation & Parole, 128 F.3d 143, 144-45

(3d Cir. 1997) (holding that frivolousness dismissals entered even prior to enactment of
PLRA count as “strikes” under § 1915(g)). A prisoner who has three or more such
dismissals may be excused from this rule only if his pleadings aver to the facts showing that
he is “under imminent danger of serious physical injury.” Id. When deciding whether an
inmate meets the “imminent danger” requirement, a court must examine the situation faced
by the inmate at the time of the filing of the complaint, and a showing of danger in the past
is insufficient to demonstrate “imminent danger.” Abdul-Akbar v. McKelvie, 239 F.3d 307,
312 (3d Cir. 2001).
3.

An examination of court records reveals that Plaintiff is a recreational litigant who has filed
numerous civil actions in various courts, including this District and the United States Court
of Appeals for the Third Circuit. The bulk of Plaintiff’s prior actions ensued from his
redemptionist/sovereign citizen beliefs, which Plaintiff asserted as the grounds for his claims.
While many of Plaintiff’s prior challenges of this type were raised by means of habeas
petitions, some of these challenges were asserted in civil complaints and, upon dismissal of
those complaints, appealed. Those particular dismissals were with prejudice at the district
level, and his appeal was analogously dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). See,
e.g., Avila v. Dominquez, U.S.C.A. Index No. 08-1549; Avila v. State of New Jersey, Civ.
Action No. 09-2540 (RBK) (D.N.J.); Avila v. State of New Jersey, Civ. Action No. 08-3699
(NLH) (D.N.J.); Avila v. U.S. District Court, Civ. Action No. 07-5760 (JEI) (D.N.J.).

4.

Accordingly, Plaintiff has reached and exceeded the statutory limit, as set forth in 28 U.S.C.
§ 1915(g), and he is precluded from seeking in forma pauperis status due to the operation of

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the “three strikes” rule: unless his pleading avers to the facts showing that he is currently in
“imminent danger of serious physical injury.”
5.

In this Complaint, Plaintiff makes no allegations or claims of “imminent danger.” Rather,
as in his prior civil right and habeas actions, Plaintiff is challenging his conviction on the
basis of his redemptionist/sovereign citizen beliefs. See Docket Entry No. 1. Therefore,
Plaintiff may not proceed in forma pauperis in this matter.
IT IS, therefore, on this 14th day of February, 2013,
ORDERED that Plaintiff’s application to proceed in this matter in forma pauperis is denied

with prejudice; and it is further
ORDERED that the Clerk shall administratively terminate this matter by making a new and
separate entry on the docket reading, “CIVIL CASE TERMINATED”; and it is further
ORDERED that Plaintiff may have this case reopened if, and only if, Plaintiff prepays his
$350.00 filing fee within thirty days from the date of entry of this Memorandum Opinion and Order;
and it is finally
ORDERED that the Clerk shall serve this Memorandum Opinion and Order upon Plaintiff
by regular U.S. mail.

/s/ Joel A. Pisano
JOEL A. PISANO
United States District Judge

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