Castonguay v. Taff et al

Filing 33

MEMORANDUM AND ORDER - Plaintiff's Motion for Leave to Proceed IFP (Filing No. 30 ) is denied. The Clerk of the court shall not process the appeal to the Eighth Circuit. The Clerk of the court is directed to forward a copy of this Memorandum and Order to the Eighth Circuit Court of Appeals. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PAUL CASTONGUAY, SR.,
Plaintiff,
v.
JACK TAFF, and CATHY TAFF,
Defendants.

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CASE NO. 4:10CV3013

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Notice of Appeal. (Filing No. 29.)
Plaintiff has not paid the appellate filing fee and has filed a Motion for Leave to Proceed
in forma pauperis (“IFP”). (Filing No. 30.) For the reasons discussed below, Plaintiff will
not be permitted to appeal unless he pays the appellate filing fee.
On March 19, 2012, Plaintiff filed a Motion for Clarification regarding his filing fees.
(Filing No. 27.) The court granted this Motion, explaining that 28 U.S.C. § 1915(b)(2)
requires monthly payments of 20 percent in each of his cases where a filing fee balance
remains outstanding. (Filing No. 28.) Plaintiff subsequently filed a Notice of Appeal and
a Motion for Leave to Proceed IFP. (Filing No. 29 and 30.)
Under the provisions of 28 U.S.C. § 1915(g), a prisoner may not proceed in forma
pauperis in a civil action, or on an appeal of a judgment in a civil action, if the prisoner has,
on three or more occasions, while incarcerated, brought an action or appeal in federal court
that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted. 28 U.S.C. § 1915(g). An exception is made for
prisoners who are under imminent danger of serious physical injury. Id. The court has

determined that Plaintiff brought three cases,1 while incarcerated, that were dismissed
because they failed to state a claim upon which relief could be granted.2
Plaintiff has not shown that these cases state a claim upon which relief may be
granted, nor has he shown that he faces any danger of physical injury. Thus, Plaintiff is
not entitled to proceed IFP on appeal. Moreover, Plaintiff has not paid the $455.00 filing
fee, and his appeal cannot be processed.
IT IS THEREFORE ORDERED that:
1.

Plaintiff’s Motion for Leave to Proceed IFP (Filing No. 30) is denied;

2.

The Clerk of the court shall not process the appeal to the Eighth Circuit; and

3.

The Clerk of the court is directed to forward a copy of this Memorandum and
Order to the Eighth Circuit Court of Appeals.

DATED this 12th day of March, 2013.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

1

Castonguay v. Douglas Cnty. Attorney Office, No. 8:09CV392 (D. Neb.), dismissed
on April 9, 2010. (Case No. 8:09CV392, Filing Nos. 11 and 12.) Castonguay v. Douglas
Cnty. Corr. Center, No. 8:09CV225 (D. Neb.), dismissed on November 3, 2009. (Case No.
8:09CV225, Filing Nos. 14 and 15.) Castonguay v. State of Neb., No. 8:09CV221 (D.
Neb.), dismissed on November 3, 2009. (Case No. 8:09CV221, Filing Nos. 15 and 16.)
2

The court takes judicial notice of the fact that Plaintiff has previously been informed
of § 1915(g)’s requirements. (See Case No. 4:10CV3207, Filing No. 20.)

*This opinion may contain hyperlinks to other documents or Web sites. The U.S.
District Court for the District of Nebraska does not endorse, recommend, approve, or
guarantee any third parties or the services or products they provide on their Web sites.
Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink.
Thus, the fact that a hyperlink ceases to work or directs the user to some other site does
not affect the opinion of the court.
2