Aery v. Dakota County et al

Filing 5

ORDER: The June 15, 2022 Order #3 is AFFIRMED and Plaintiff's Objections #4 are OVERRULED. Plaintiff must pay the full $402 filing fee for this action by no later than August 23, 2022, failing which this action will be dismissed without prejudice for failure to prosecute. (Written Opinion) Signed by Judge Katherine M. Menendez on 8/2/2022. (BJP)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
James Paul Aery,

Case No. 22-cv-1565 (KMM/ECW)
Plaintiff,

v.

ORDER

Dakota County; Connor Cremens, Official
Capacity; and Joel Harazuk, Individually
and Officially;
Defendants.

This matter is before the Court on Plaintiff James Paul Aery’s “Objection to
Order” filed on July 11, 2022. [ECF 4]. Mr. Aery objects to the June 15, 2022 Order
issued by United States Magistrate Judge Elizabeth Cowan Wright which denied Aery’s
application to proceed in forma paupers (“IFP”) [Order, ECF 3; IFP Application, ECF 2].
For the reasons that follow, Mr. Aery’s Objections are overruled, the June 15th Order is
affirmed, and Aery is required to pay a filing fee within the time permitted by this Order
or his case will be dismissed without prejudice for failure to prosecute.
In the June 15th Order, Judge Cowan Wright finds that Mr. Aery is a prisoner
upon whom the Prison Litigation Reform Act of 1996 (“PLRA”) places certain
restrictions in obtaining IFP status. The Order explains that the PLRA requires a prisoner
who is granted IFP status to ultimately pay the full filing fee in installments, but the
statute also give the prisoner the benefit of paying only an initial partial filing fee at the
outset of the litigation. In addition, the Order notes that the PLRA prohibits a prisoner

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from obtaining IFP status in certain circumstances. 28 U.S.C. §§ 1915(b), (g).
Specifically, the statute provides,
[i]n no event shall a prisoner bring a civil action or appeal a judgment in a
civil action or proceeding under this section 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).
Applying this provision, Judge Cowan Wright found that Mr. Aery has filed three
lawsuits in this District that, prior to the filing of this lawsuit, have been dismissed for
failure to state a claim on which relief may be granted. [ECF 3 at 2]. Judge Cowan
Wright identifies the following three cases:
• Aery v. Unknown Beltrami County Deputies, No. 21-cv-2373
(KMM/DTS), Dkt. No. 7 (D. Minn. Mar. 22, 2022) (“Beltrami”);
• Aery v. Pine County Ambulance Service, No. 22-cv-0009
(SRN/LIB), Dkt. No. 6 (D. Minn. Apr. 13, 2022) (“Pine County”);
and
• Aery v. Port Bethel, No. 22-cv-0456 (NEB/DTS), Dkt No. 5 (D.
Minn. May 6, 2022) (“Port Bethel”).
[Id.] Further, she concluded that Mr. Aery is not under any “imminent danger of serious
physical injury,” given that the lawsuit he filed concerns events that took place nearly
three years ago. [Id.]. As a result, Judge Cowan Wright concluded that § 1915(g)
prohibits Mr. Aery from obtaining IFP status in this case. [Id.] The June 15th Order
provides that Mr. Aery could move forward with the litigation if he were to pay the full

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$402 filing fee by July 8, 2022, and if he did not, his case would be subject to dismissal
without prejudice for failure to prosecute. [Id. at 2–3].
Legal Standard
If a party timely objects to the decision of a magistrate judge on a nondispositive
pretrial matter, the district judge is required to “modify or set aside any part of the order
that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); see also 28 U.S.C.
§ 636(b)(1)(A); D. Minn. LR 72.2(a)(3). When a party objects to a magistrate judge’s
proposed findings and recommendations on a dispositive pretrial matter, the district judge
“must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to,” and may “accept, reject, or modify the recommended disposition or
take other appropriate steps.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1)(C);
D. Minn. LR 72.2(b)(3).
When assessing objections to magistrate judge decisions regarding IFP
applications, some courts have applied the standard for review of nondispositive matters,
and others have applied the standard applicable to dispositive issues. See Carlone v. Heat
and Frost Insulators and Allied Workers Local 34, No. 14-cv-579 (SRN/JSM), 2014 WL
5438493 (D. Minn. Oct. 23, 2014) (identifying cases in the District of Minnesota
applying standard of review for nondispositive magistrate judge rulings on IFP
applications and other cases applying the standard for dispositive issues). 1 Here the Court
See also Wilmington Tr, NA v. Scarlett, No. 1:17-cv-04605-AT-AJB, 2017 WL
8217729, at *2 n.4 (N.D. Ga. Nov. 20, 2017) (discussing split of authority on standard of
review for denials of IFP applications).
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finds that it need not resolve which standard applies because even under a de novo
standard of review, Mr. Aery’s Objections to the denial of his IFP application fail. See
Carlone, 2014 WL 5438493, at *2 (not deciding which standard applies because the
objection failed under the more rigorous de novo standard).
Discussion
Mr. Aery raises only a narrow challenge to the June 15th Order. For example, he
does not object to Judge Cowan Wright’s finding that he is a prisoner to whom the PLRA
and § 1915(g) applies. Nor does he object to the determination that his complaint presents
no claim that he is under imminent danger of serious physical injury. Having reviewed
the record, this Court finds there was no error in these conclusions.
Here, Aery challenges only the finding that he has previously filed three cases that
were dismissed for failure to state a claim on which relief may be granted. The Court
finds no error in Judge Cowan Wright’s determination that Mr. Aery is barred from
proceeding IFP in this case by 28 U.S.C. § 1915(g). Section 1915(g) is commonly
referred to as the “three strikes rule.” E.g., Stewart v. Freddie, No. 6:14-cv-06143, 2016
WL 5403099 (W.D. Ark. May 24, 2016). By its plain language, it applies when a
prisoner has, on three or more prior occasions during his incarceration, filed an action
that was dismissed because it failed to state a claim upon which relief may be granted.
Each of the cases Judge Cowan Wright identified was filed before Mr. Aery
commenced this case on June 13, 2022. Aery filed Beltrami on October 25, 2021, Pine
County on January 3, 2022, and Port Bethel on February 17, 2022. And all three of those
cases were dismissed for failure to state a claim before June 13, 2022: Beltrami was
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dismissed March 22, 2022, Pine County on April 13, 2022, and Port Bethel on May 6,
2022.
In his Objections, Mr. Aery states that in neither Pine County nor Port Bethel did
the court give him an opportunity to amend. 2 The dismissals in both cases were without
prejudice, and neither dismissal order expressly provided an opportunity for Aery to
amend his complaint. Pine County, No. 22-cv-0009 (SRN/LIB), Dkt. No. 6 at 9; Port
Bethel, No. 22-cv-456 (NEB/DTS), Dkt. No. 5 at 5. But this reinforces, rather than
undermines, the conclusion that the dismissals in Pine County and Port Bethel were
strikes two and three. The Supreme Court has explained that the “broad language” of
§ 1915(g) applies to dismissals “issued both with and without prejudice as to a plaintiff’s
ability to reassert his claims in a later action.” Lomax v. Ortiz-Martinez, 140 S. Ct. 1721,
1724 (2020); see also Orr v. Clements, 688 F.3d 463, 465 (8th Cir. 2012) (“The text of
§ 1915(g) draws no distinction between dismissals with prejudice and dismissals without
prejudice.”). The three-strikes rule “does not apply when a court gives a plaintiff leave to
amend his complaint,” which is a path courts take “if there is a chance that amendment
can cure a deficient complaint.” Lomax, 140 S. Ct. at 1724 n.4. Because the Pine County
and Port Bethel courts did not follow that path, Mr. Aery is incorrect that those
dismissals do not qualify as strikes.

Mr. Aery raises no specific objection regarding the finding that Beltrami counts as a
strike for purposes of 28 U.S.C. § 1915(g). The Court finds no error in that determination.
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Mr. Aery raises one more attempt to avoid striking out of IFP eligibility. He states:
“[t]his case is partially a continuation from 20-cv-55, [in] which Judge Tunheim state[d]
he expected me to re-file once I was more prepared, which I am.” [ECF 4 at 1]. Aery
refers here to another case that he filed before this suit: Aery v. Cremens, et al., No. 20cv-0055 (JRT/ECW), Dkt. No. 1 (D. Minn. Jan. 6, 2020). On March 20, 2021, in Aery v.
Cremens, Judge Tunheim issued an Order adopting the recommendation, also issued by
Judge Cowan Wright, that Mr. Aery’s complaint be dismissed for failure to state a claim
against Connor Cremens, the prosecutor who signed the criminal complaint that formed
the basis of that lawsuit. Id., No. 20-cv-0055 (JRT/ECW), Dkt. No. 68 (D. Minn. Mar.
30, 2021). In that Order, Judge Tunheim indeed explained that the dismissal of
Mr. Aery’s complaint was without prejudice, meaning that “the complaint may be
amended and filed again, correcting the problems identified with the original complaint.”
Id., Dkt. No. 68 at 9. Similarly, the dismissal Order stated that “when he is better
prepared, Aery is free to file another action to reassert the claims that the Court will
dismiss without prejudice.” Id. The claim at issue in that case that was dismissed without
prejudice appears to be the one that Mr. Aery is now attempting to litigate in this
proceeding. That claim was an official-capacity claim against Mr. Cremens. Judge
Tunheim dismissed that claim without prejudice because Mr. Aery had not included any
allegations showing that Dakota County “created, adopted, or supported an
unconstitutional policy or custom or that the County failed to train or supervise its
prosecutors with deliberate indifference.” Id. at 7–8.

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However, nothing about the outcome of Aery v. Cremens undermines Judge
Cowan Wright’s conclusion in the June 15th Order that, before Mr. Aery filed this case,
he had acquired three strikes against him for purposes of § 1915(g). Even if Judge
Tunheim’s Order in Case No. 20-cv-55 could be construed as having given Mr. Aery
leave to amend, Judge Cowan Wright did not base her determination that Mr. Aery had
accumulated three strikes based on the outcome of Aery v. Cremens. Indeed, Judge
Cowan Wright specifically found that the dismissal in Case No. 20-cv-55 did not
constitute a strike for purposes of § 1915(g). [ECF 3 at 2 n.1]. Between the time Judge
Tunheim dismissed the earlier case against Mr. Cremens without prejudice and the time
Mr. Aery filed this case, Aery struck out by taking his swings in other cases. The
intervening dismissals in Beltrami, Pine County, and Port Bethel were strikes one, two,
and three, and Mr. Aery has lost the opportunity to obtain IFP status even though he
intends this case to be a “partial continuation” of Aery v. Cremens on the official-capacity
claim that Judge Tunheim dismissed without prejudice.
Conclusion
For the reasons stated above, the June 15, 2022 Order [ECF 3] is AFFIRMED and
Mr. Aery’s Objections [ECF 4] are OVERRULED. Mr. Aery must pay the full $402
filing fee for this action by no later than August 23, 2022, failing which this action will
be dismissed without prejudice for failure to prosecute.
Date: August 2, 2022
s/Katherine Menendez
Katherine Menendez
United States District Judge
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