AMENDED CLD-220                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                    No. 11-2190
                                    ___________

                                WAYNE T. BAKER,
                                              Appellant
                                      v.

      DONALD FLAGG; JAMES T. VAUGHN CORRECTIONAL CENTER;
     DEPARTMENT OF CORRECTIONS; WARDEN PERRY PHELPS; FIRST
    CORRECTIONAL MEDICAL; INFIRMARY OF THE J.T.V.C.C.; STATE OF
                           DELAWARE
               ____________________________________

                   On Appeal from the United States District Court
                             for the District of Delaware
                           (D.C. Civil No. 1-10-cv-01144)
                    District Judge: Honorable Leonard P. Stark
                    ____________________________________

        Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
        or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   June 23, 2011
             Before: RENDELL, FUENTES and SMITH, Circuit Judges

                            (Opinion filed: July 25, 2011)
                                     _________

                                     OPINION
                                     _________

PER CURIAM

      On May 29, 2010, Wayne T. Baker (“Baker”), a Delaware state prisoner

incarcerated in the James T. Vaughn Correctional Center (“JTVCC”), filed a pro se and
                                          1
in forma pauperis civil rights complaint in the United States District Court for the District

of Delaware. Prepared with the unmistakable assistance of fellow JTVCC inmate Ivan

Mendez (“Mendez”), 1 the complaint—which addressed an altercation between Baker and

cellmate Donald Glagg/Flagg (“Flagg”), and the aftermath thereof—was facially

defective, as it named no parties subject to suit under 42 U.S.C. § 1983 and did not

identify those actors who had potentially delayed Baker’s medical treatment.                 The

District Court issued an opinion advising Baker of these deficiencies and dismissed the

case without prejudice, while granting Baker leave to amend. Baker v. James T. Vaughn

Corr. Ctr., No. 10-482, 2010 U.S. Dist. LEXIS 70550, at *9 (D. Del. July 14, 2010).

Baker’s amended complaint fared little better, failing to cure the pleading deficiencies of

the original. Accordingly, the District Court dismissed the complaint with prejudice

under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). Baker v. James T. Vaughn Corr.

Ctr., No. 10-482, 2010 U.S. Dist. LEXIS 104400, at *8 (D. Del. Sept. 30, 2010). We

determined that the appeal presented no substantial question and summarily affirmed.

See generally Baker v. James T. Vaughn Corr. Ctr., No. 10-4010, 2011 U.S. App. LEXIS

8060 (3d Cir. Del. Apr. 19, 2011).

       Before we ruled on his appeal, however, Baker commenced another civil rights

suit. Prepared (again) by Mendez, the complaint named as defendants Flagg, the JTVCC,

the Delaware Department of Corrections, JTVCC Warden Perry Phelps, First

1
  Mendez composed most, if not all, of the filings in the suit; at one juncture, Baker submitted a
form giving Mendez Power of Attorney. That form was neither signed nor notarized.

                                                2
Correctional Medical, the JTVCC infirmary, and the State of Delaware. Baker appeared

to complain that he had been deprived of “incident reports, grievances, X-rays reports,

admissions reports, medical reports . . . and any and all of the documents and evidence”

relating to his earlier assault by Flagg, connecting his failure to receive documents with

the dismissal of his previous lawsuit.     Following the submission of several other

documents prepared by Mendez, the District Court dismissed the complaint as frivolous,

denied the intervening motions, and declined to grant leave to amend. Baker v. Flagg,

No. 10-1144, 2011 U.S. Dist. LEXIS 43209, at *13 (D. Del. Apr. 21, 2011). Baker filed

a timely notice of appeal.

       We have jurisdiction under 28 U.S.C. § 1291 and may summarily affirm the

District Court on any basis supported by the record. See Murray v. Bledsoe, ___ F.3d

___, 2011 U.S. App. LEXIS 11702, at *3 (3d Cir. Pa. June 10, 2011, No. 10-4397) (per

curiam); see also L.A.R. 27.4; I.O.P. 10.6. Our review of a sua sponte dismissal for

failure to state a claim is plenary, and we must accept as true all well-pleaded factual

allegations and draw all reasonable inferences in Baker’s favor. Allah v. Seiverling, 229

F.3d 220, 223 (3d Cir. 2000).

       Having reviewed the record, we are in full accord with the opinion of the District

Court. None of the defendants is properly sued under 42 U.S.C. § 1983, a statute that can

be marshaled only against “person[s]” acting “under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the District of Columbia.” In

other words, “a plaintiff seeking to hold an individual liable under § 1983 must establish
                                            3
that she was deprived of a federal constitutional or statutory right by a state actor.” Kach

v. Hose, 589 F.3d 626, 646 (3d Cir. 2009). Flagg, a private party and inmate—and, it

appears, a person of limited, if any, involvement in the conduct complained of in the

present action—is not clothed with the authority of the state, and is thus not subject to

suit under § 1983. Nor has Baker alleged any personal involvement by Warden Perry

Phelps in any constitutional violation—a fatal flaw, since “liability [in a § 1983 suit]

cannot be predicated solely on the operation of respondeat superior.”                    Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

       With regard to the institutional and governmental defendants, it is well established

that, in the absence of waiver, “neither a State nor agencies acting under its control may

‘be subject to suit in federal court.’” P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,

Inc., 506 U.S. 139, 144 (1993) (quoting Welch v. Tex. Dept. of Highways and Pub.

Transp., 483 U.S. 468, 480 (1987) (plurality)). 2              The Delaware Department of

Corrections is “clearly a state agency. It was created via an enabling statute, is supported

by state tax dollars, and exists solely to regulate the activities of Delaware’s criminals,

i.e. as a principle [sic] arm of the State’s police power.” Murphy v. Corr. Med. Servs.,

No. 03C-04-271-PLA, 2005 Del. Super. LEXIS 287, at *7 (Del. Super. Ct. Aug. 19,

2005). The JTVCC and its institutions are subsidiaries of the DOC, and hence share the

State of Delaware’s immunity to suit. Cf. Lavia v. Pennsylvania, 224 F.3d 190, 195 (3d


2
 Additionally, “neither a State nor its officials acting in their official capacities are ‘persons’
under § 1983.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).
                                                4
Cir. 2000) (“Because the Commonwealth of Pennsylvania’s Department of Corrections is

a part of the executive department of the Commonwealth, see Pa. Stat. Ann., tit. 71 § 61,

it shares in the Commonwealth’s Eleventh Amendment immunity.”); see also Robinson

v. Danberg, 729 F. Supp. 2d 666, 675 (D. Del. 2010) (“The State of Delaware has not

waived its sovereign immunity under the Eleventh Amendment. Hence, as an agency of

the State of Delaware, the [Department of Corrections] is entitled to immunity under the

Eleventh Amendment.”) (citations omitted).

       Finally, with regard to defendant First Correctional Medical, we can discern no

allegations of unconstitutional wrongdoing directed its way. To the extent that Baker

claims that some failure by First Correctional Medical to provide him with records

caused the dismissal of his earlier District Court suit—an allegation that could be

construed as an access to the courts claim under the First Amendment, see Monroe v.

Beard, 536 F.3d 198, 205 (3d Cir. 2008)—we observe that it was not a failure to present

records that hobbled his suit, but his failure to state a claim upon which relief could be

granted.

       Therefore, for the foregoing reasons and because no substantial question is

presented by this appeal, we will summarily affirm the judgment of the District Court on

all grounds.

       However, we would be remiss if we ended our discussion before explaining to

Baker the consequences of his choices thus far and how they might affect his future

ability to bring suit in federal court. Under one of the changes to federal in forma
                                             5
pauperis status effected by the Prison Litigation Reform Act of 1996 (“PLRA”), a

prisoner may not “bring a civil action or appeal a judgment in a civil action or proceeding

[in forma pauperis] 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). In plain English, this means that prisoners who

have had three actions or appeals dismissed cannot take advantage of any of the benefits

of in forma pauperis status, such as avoiding the immediate payment of filing fees or

having pro bono counsel appointed by the court under § 1915(e)(1). See Brightwell v.

Lehman, 637 F.3d 187, 192 (3d Cir. 2011); see also Campbell v. Clarke, 481 F.3d 967,

969 (7th Cir. 2007) (explaining that dismissal of an appeal from a dismissed complaint

constitutes two independent strikes).         This bar holds firm unless the prisoner can

demonstrate that he seeks relief from an imminent threat or danger that is present at the

time the complaint is filed. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir.

2001) (en banc). It is not an insurmountable hurdle—and, of course, a prisoner can

always retain counsel and pay the filing fees to avoid this requirement—but, in practice,

it can greatly limit the ability of three-strike litigants to bring suit.

       Baker has now accrued two “strikes” under § 1915(g). We therefore suggest that

he exercise an extreme amount of caution in proceeding further. Baker should also

reconsider his selection of a jailhouse lawyer. Mendez, who has authored all of Baker’s
                                                 6
submissions to both this Court and the District Court (and who, as mentioned supra,

attempted at one juncture to obtain power of attorney for Baker), is a three-strikes litigant

and a frequent filer, lodging at least 46 appeals in this Court—none of which (to our

knowledge) has met with success. 3

       Again, for the reasons given, we will summarily affirm the District Court’s

dismissal of Baker’s complaint under 28 U.S.C. § 1915(e)(2)(B). 4




3
  We do not discount the possibility that Mendez has “captured” a fellow JTVCC inmate to
further realize his passion for wasting both the time and the resources of federal courts. In
dismissing Baker’s prior complaint, the District Court discussed Mendez’s role, observing that
“Mendez may not act as an attorney for other individuals.” Baker, 2010 U.S. Dist. LEXIS
104400, at *7. It proposed an edict: “future documents prepared by Mendez will be docketed,
but not considered by the Court.” Id. at *8. Nevertheless, Baker’s second complaint, authored
by Mendez, was allowed to proceed. We encourage the District Court to apply its rule
henceforth, especially with regard to documents explicitly prepared by Mendez, as were those in
the instant case and appeal.
4
  Baker’s request “to File Exhibits,” contained within his filing in support of his appeal, is
denied. To the extent that his other filings in this Court can be construed as requesting
independent relief, they are also denied.
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