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Banks v. Pearson

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


May 26, 2010

FREDERICK BANKS, PLAINTIFF
v.
BRUCE PEARSON, ET AL., DEFENDANTS

The opinion of the court was delivered by: Judge Conner

ORDER

AND NOW, this 26th day of May, 2010, upon preliminary consideration of plaintiff's Bivens*fn1 styled civil rights action pursuant to 28 U.S.C. § 1331, in which he alleges that the named defendants violated his Fifth Amendment rights to due process and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-06, and it appearing that he seeks to proceed in forma pauperis (Doc. 3), 28 U.S.C. § 1915, and it further appearing that the "three strikes"provision of the Prison Litigation Reform Act of 1996 ("PLRA"), codified at 28 U.S.C. § 1915, prohibits him from proceeding in forma pauperis as he has had three prior actions or appeals dismissed as frivolous, malicious, or for failing to state a viable claim*fn2, and it further appearing that there is no indiction that plaintiff "is under imminent serious physical injury," 28 U.S.C. § 1915(g) (setting forth the three strikes rule which provides that an inmate who has three prior actions or appeals dismissed as frivolous, malicious, or for failing to state a viable claim may not proceed in forma pauperis "unless the prisoner is under imminent danger of serious physical injury"); see also Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc), it is hereby ORDERED that:

1. Plaintiff's motion to proceed in forma pauperis (Doc. 3) is DENIED.

2. The administrative order (Doc. 5) is hereby VACATED. The Clerk of Court shall send notice to the warden at plaintiff's present place of incarceration.

3. Plaintiff's complaint (Doc. 1) is DISMISSED without prejudice, pursuant to 28 U.S.C. § 1915(g).

4. The Clerk of Court is directed to CLOSE this case.

5. Any appeal from this order is DEEMED frivolous and not in good faith. See 28 U.S.C. § 1915(a)(3).

CHRISTOPHER C. CONNER United States District Judge


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