Nelson v. Flemmer et al

Filing 19

ORDER denying 12 Motion to Appoint Counsel ; denying 12 Motion for Order to Show Cause; denying 12 Motion for copies of transcripts and for a pendent lite order and denying 15 Motion for Leave to Proceed in forma pauperis. Signed by U.S. District Judge Charles B. Kornmann on 03/17/2015. (SAT)

RIED
UNITED STATES DISTRICT COURT

MAR 1 9 2015

DISTRICT OF SOUTH DAKOTA

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NORTHERN DIVISION
FRANKLIN SANDOVAL NELSON,

1: 15-CV-O 1001-CBK

Plaintiff,
ORDER

vs.
JUDGE JON S. FLEMMER, STATE'S
ATTORNEY KERRY F. CAMERON,
WARDEN ROBERT DOOLEY, and
OFFICER OF THE COURT TIMOTHY J.
CUMMINGS, IN THEIR OFFICIAL AND
INDIVIDUAL CAPACITIES;
Defendants.

Plaintiff attempted to challenge his conviction of third degree rape in the South
Dakota Fifth Judicial Circuit Court, Roberts County, and sentenced of 25 years custody
by filing what was captioned as a civil rights complaint pursuant to 42 U.S.C. § 1983 and
petition for removal of criminal proceedings to federal court. I held that the only means
of attacking his state court conviction and sentence was pursuant to 28 U.S.C. § 2254,
construed his purported civil rights complaint as a petition for a writ of habeas corupus,
and dismissed the petition without prejudice for failure to exhaust state court direct
appeal and habeas remedies.
Petitioner has filed motions to appoint counsel, for an order to show cause, for
copies of transcripts, for a pendent lite order, and to appeal without the prepayment of
fees. His request for a certificate of appealability has been denied by separate order.
I previously found petitioner to be indigent. However, pursuant to the Prison
Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915(a)(3), an appeal may not be taken in

forma pauperis if it is not taken in good faith. I certify, pursuant to Fed. R. App. P.
24(a)(4), that this appeal is not taken in good faith and is frivolous.
The PLRA"makes prisoners responsible for their filing fees the moment the
prisoner files an appeal." Henderson v. Norris, 129 F.3d 481, 483 (8th Cir. 1997).
"Thus, prisoners who appeal judgments in civil cases must sooner or later pay the
appellate filing fees in full." Id., 28 U.S.C. § 1915(b)(l).
Petitioner's case has been dismissed and judgment has entered. The case is closed
and this Court cannot entertain further requests for relief, other than in conjunction with a
notice of appeal. Petitioner's motion for an order that he be released in thirty days or
show cause why he should not be released, his motion for an order directed to the South
Dakota state court clerk to provide him copies of documents, and his motion for the
appointment of counsel are frivolous at this juncture.
Now, therefore,
IT IS ORDERED:
1. Petitioner's motions, Doc. 12, to appoint counsel, for an order to show cause,
for copies of transcripts, and for a pendent lite order are denied.
2. Petitioner's motion, Doc. 15, to appeal without the prepayment of fees is
denied.
3. Petitioner is required by the Prison Litigation Reform Act, 28 U.S.C. § 1915, to
pay the $505 filing and docketing fees. The institution having custody of the plaintiff is
hereby directed that, whenever the amount in plaintiffs trust account exceeds $10.00,
monthly payments that equal 20% of the funds credited to the plaintiffs trust account the
preceding month shall be forwarded to the U.S. District Court Clerk's office, pursuant to
28 U.S.C. § 1915(b)(2), un~the $505 appellate filing fee is paid in full.
DATED this L.2'~ofMarch, 2015.
BY THE COURT:

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United States District Judge
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