Castonguay v. Newton et al

Filing 170

MEMORANDUM AND ORDER - The Clerk of the court shall not process the appeal 166 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,
Plaintiff,
v.
JEFFREY NEWTON, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

CASE NO. 8:09CV413

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Notice of Appeal. (Filing No. 166.)
Plaintiff has not paid the appellate filing fee or filed a motion for leave to proceed in forma
pauperis. (Filing No. 167.) For the reasons discussed below, Plaintiff will not be permitted
to appeal unless he pays the appellate filing fee.
On February 10, 2012, the court dismissed Plaintiff’s Complaint and entered
Judgment against him. (Filing Nos. 154 and 155.) Thereafter, Plaintiff filed a Notice of
Appeal (filing no. 156) and a Motion for Leave to Appeal IFP (filing no. 157). On March 2,
2012, the court denied Plaintiff’s IFP Motion pursuant to the three strikes provision of 28
U.S.C. § 1915(g) (“§ 1915(g)”). (Filing No. 160.)
On March 19, 2012, Plaintiff filed a Motion for Order to Compel. (Filing No. 164.)
The court denied this Motion and Plaintiff filed a timely Notice of Appeal. (Filing Nos. 165
and 166.)
Under the provisions of § 1915(g), a prisoner may not proceed in forma pauperis in
a civil action, or appeal 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. § 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.

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

2.

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 14th day of May, 2012.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

1

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