STITT v. ZANDER et al

Filing 4

MEMORANDUM. SIGNED BY HONORABLE JAMES KNOLL GARDNER ON 9/27/13. 9/30/13 ENTERED AND COPIES MAILED TO PRO SE. (mas, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

s.

GLENN

CIVIL ACTION

STITT

v.
NO. 13-4552

AMY K. ZANDER, et al.

s.

GLENN

CIVIL ACTION

STITT

v.
NO. 13-4553

MEYERS, et al.

MEMORANDUM
SEPTEMBER

GARDNER, J.

'li ,

2013

Glenn S. Stitt, a prisoner incarcerated at the State
Correctional Institution at Laurel Highlands, filed the two above
captioned civil rights actions.
pauperis. 1

He seeks to proceed in forma

For the following reasons, the Court will deny

plaintiff leave to proceed in forma pauperis pursuant to 28
U.S.C.

§

1915(g), without prejudice to plaintiff reinstating the

cases by paying the filing fee and administrative fee.
According to§ 1915{g), a prisoner who on three or more
prior occasions while incarcerated has filed an action or appeal

1

Plaintiff filed a motion to proceed in forma pauperis in
connection with Civ. A. No. 13-4552, which was docketed in Civ.
A. No. 13-4553. He subsequently filed a copy of his prison
account statement, which was docketed in Civ. A. No. 13-4552.
Plaintiff submitted $5.00 with Civ. A. No. 13-4553, which is the
filing fee to commence a habeas proceeding, as opposed to a civil
rights action.
However, he indicated in subsequent exhibits that
he is indigent.
Stitt v. Meyers, Civ. A. No. 13-4553 (Document
No. 2.) Accordingly the Court understands plaintiff to be
seeking leave to proceed in forma pauperis in both cases.
1

in federal court that was dismissed as frivolous, malicious, or
for failure to state a claim upon which relief may be granted,
must be denied in forma pauperis status unless he was in imminent
danger of serious physical injury at the time that the complaint
was filed.
Cir. 2001)

Abdul-Akbar v. McKelvie, 239 F.3d 307, 310-11 {3d
(en bane).

"[A] strike under§ 1915(g) will accrue

only if the entire action or appeal is (1) dismissed explicitly
because it is 'frivolous,'

'malicious,' or 'fails to state a

claim' or {2) dismissed pursuant to a statutory provision or rule
that is limited solely to dismissals for such reasons, including
(but not necessarily limited to) 28 u.s.c. §§ 1915A(b) (1),
1915 (e} (2) (B} (i},

1915 (e} (2) (B} Iii},

Federal Rules of Civil Procedure."
117, 126 (3d Cir. 2013).

or Rule 12 (b} (6)

of the

Byrd v. Shannon, 715 F.3d

"[D]ismissals for frivolousness prior

to the passage of the PLRA are included among [a plaintiff's]
three [strikes]."
143, 144-45

Keener v. Pa. Ed. of Prob. & Parole, 128 F.3d

(3d Cir.

1997).

Plaintiff accumulated at least three "strikes" for purposes
of 28 U.S.C. § 1915(g) at the time he filed this action.

See

Stitt v. Spector, E.D. Pa. Civ. A. No. 93-3144 (dismissing
complaint as frivolous pursuant to 28 U.S.C. § 1915(d)); Stitt v.
Spector, E.D. Pa. Civ. A. No. 93-2592 (dismissing complaint as
frivolous pursuant to 28 U.S.C.

§

191S(d); Stitt v. Kitzman, S.D.

Tex. Civ. A. No. 93-2044 (dismissing complaint as frivolous and
malicious); Stitt v. DeAnda, S.D. Tex. Civ. A. No. 93-1452
(dismissing complaint as frivolous); Stitt v. Collins, S.D. Tex.
2

93-488 {dismissing case as frivolous).

Accordingly, he may not

proceed in f orma pauperis unless he was in imminent danger of
serious physical injury at the time he filed his complaint.
Allegations of imminent danger must be evaluated in
accordance with the liberal pleading standard applicable to pro
se litigants.
1998)

Gibbs v. Cross, 160 F.3d 962, 966-67 {3d Cir.

{quotations omitted).

In Stitt v. Zander, Civ. A. No. 13-

4552, plaintiff alleges that the defendants tampered with
transcripts in his criminal case.

In Stitt v. Meyers, Civ. A.

No. 13-4553, plaintiff alleges that he was the victim of false
disciplinary charges.

Neither of the complaints reflects that

plaintiff was in imminent danger of serious physical injury at
the time of filing.

Accordingly, the Court will deny plaintiff

leave to proceed in forma pauperis without prejudice to his
paying the filing fee and administrative fee.
order follows.

3

An appropriate