Castonguay v. Tecumseh Institution

Filing 78

MEMORANDUM AND ORDER - Petitioner's Application for Leave to Appeal IFP (filing no. 74 ) is granted and Petitioner may proceed IFP on appeal. The Clerk of the court shall provide the Court of Appeals with a copy of this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (Copy transmitted to 8th Circuit as directed)(AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PAUL CASTONGUAY,
Petitioner,
v.
TECUMSEH INSTITUTION, Fred
Britton/Warden,
Respondent.

)
)
)
)
)
)
)
)
)
)

4:11CV3145

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner’s (“Castonguay”) Application for
Leave to Appeal In Forma Pauperis (“IFP”). (Filing No. 74.) On April 3, 2012, the
court dismissed Petitioner’s habeas corpus claims and entered Judgment against him.
(Filing Nos. 55 and 56.) Petitioner thereafter filed a timely Notice of Appeal. (Filing
No. 60.) Petitioner also filed a Motion for Leave to Proceed IFP. (Filing No. 62.) On
June 7, 2012, I denied Petitioner’s Motion for Leave to Proceed IFP, without prejudice
to reassertion, pursuant to the three-strike provisions of 28 U.S.C. §1915(g)
(“§1915(g)”).1 (Filing No. 69.) As I shall next explain, that decision was erroneous
and I apologize for my error.
In his new Application for Leave to Appeal IFP, Petitioner renews his request
to proceed on appeal without payment. (Filing No. 74.) Upon further review,

1

In full, § 1915(g) provides:

In 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.

Petitioner’s habeas action is not subject to the three-strike provisions of § 1915(g).
See Malave v. Hedrick, 271 F.3d 1139, 1139-40 (8th Cir. 2001) (concluding Prison
Litigation Reform Act is inapplicable to habeas corpus actions); see also United States
v. Feist, 346 F. App’x 127, 128 (8th Cir. 2009) (reiterating that “filing fee provisions
of the PLRA are inapplicable” in habeas corpus actions). Accordingly, Petitioner may
proceed IFP on appeal.
I must acknowledge that the Court of Appeals ruled on June 29, 2012, that
Castonguay is obligated to pay the full appellate filing fee. (Filing No. 77.) I do not
mean to contradict the Court of Appeals, but my earlier order was wrong, thus inviting
a possibly erroneous ruling by the Court of Appeals. Further, I am obligated to rule
on the new Motion to Proceed in Forma Pauperis that was submitted prior to the
issuance of the Court of Appeals’ Order. Also, I do not understand the Court of
Appeals to have explicitly reversed its prior decisions. If the Court of Appeals
nevertheless concludes that allowing Castonguay to proceed IFP is in error despite this
ruling, the Court of Appeals may, of course, require collection of the appellate filing
fee and I will proceed accordingly.
Again, apologizing for my error,
IT IS THEREFORE ORDERED that:
1.

Petitioner’s Application for Leave to Appeal IFP (filing no. 74) is

granted and Petitioner may proceed IFP on appeal.
2.

The Clerk of the court shall provide the Court of Appeals with a

copy of this Memorandum and Order.
July 5, 2012

BY THE COURT:
Richard G. Kopf
Senior United States District Judge

2