Waliezer v. Doe et al

Filing 23

ORDER denying 21 Motion for Leave to Proceed in forma pauperis. Signed by U.S. District Judge Charles B. Kornmann on 11/17/2021. Mailed copy to Shane Waliezer via USPS. (VMM)

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Case 1:21-cv-01020-CBK Document 23 Filed 11/17/21 Page 1 of 2 PageID #: 97 FILED UNITED STATES DISTRICT COURT NOV I 1 2021 DISTRICT OF SOUTH DAKOTA ERK NORTHERN DIVISION SHANE D. WALIEZER, 1:21-CV-01020-CBK Plaintiff, ORDER DENYING APPLICATION vs. TO APPEAL IN FORMA PAUPERIS JANE DOE,et al. Defendants. Plaintiff filed this case pursuant to 42 U.S.C. § 1983 alleging that, in 2015 and 2017, defendants negligently violated his constitutional and statutory rights. The complaint was dismissed upon initial review pursuant to 28 U.S.C. § 1915(e)(2)(B)for failure to state a claim upon which relief may be granted. The dismissal counted as a third strike pursuant to28U.S.C. § 1915(g). Plaintiff has filed a notice of appeal and an application to proceed on appeal in forma pauperis without the prepayment of the appellate filing fee. Fed. R. App. P. 24(a)(1)(C) provides that a party who desires to appeal informa pauperis must file a motion and affidavit that states the issues that the party intends to present on appeal. Plaintiff has not substantially complied with Rule 24(a)(1). He filed his notice of appeal on what appears to be a form. It is not an appeal form provided by the United States District Courts. Fed. R. App. P. 24(a)(3) authorizes a party who was permitted to proceed informa pauperis in the District Court to proceed on appeal informa pauperis unless the District Court certifies that the appeal is not taken in good faith. Plaintiff was authorized to proceed without the prepayment of the filing fees. However,I find that the appeal is not taken in good faith. Plaintiffs complaint was dismissed upon initial screening conducted pursuant to 28 U.S.C. § 1915A(b). Plaintiff sought relief on the basis of alleged actions which occurred in conjunction with his state court criminal charges. I found that the complaint Case 1:21-cv-01020-CBK Document 23 Filed 11/17/21 Page 2 of 2 PageID #: 98 was barred by Heck V. Humnhrev. 512 U.S. 477,486-87, 114 S. Ct. 2364, 2372-73, 129 L. Ed. 2d 383(1994)because the state court criminal proceeding was still pending. I further found that defendant's claims against the prosecutors in his state court criminal and habeas proceedings were barred by the doctrine of absolute prosecutorial immunity. Finally, I found that plaintiffs claims did not arise out of federal constitutional or statutory rights. I certify that the plaintiffs appeal is not taken in good faith. Now,therefore, IT IS ORDERED that plaintiffs motion. Doc. 21, for leave to proceed on appeal without the prepayment ofthe filing fee is denied. DATED this of November, 2021. BY THE COURT: CHARLES B. KORNMANN United States District Judge

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