Waliezer v. Larson

Filing 17

ORDER denying #16 Motion for Leave to Proceed in forma pauperis; denying #3 Motion for Leave to Proceed in forma pauperis. Signed by U.S. District Judge Charles B. Kornmann on 10/06/2021. MAILING copy of Order to Shane Waliezer on 10/07/2021. (SAC)

Case 1:21-cv-01021-CBK Document 17 Filed 10/07/21 Page 1 of 2 PageID #: 72

FILED

UNITED STATES DISTRICT COURT

OCT O 7 2021

DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
SHANE D. WALIEZER,
vs.

Plaintiff,

JEFF LARSON, in his individual and
official capacity,

��

1:21-CV-O1021-CBK

ORDER

Defendant.
Plaintiff filed a prose complaint under 42 U.S.C. § 1983. Plaintiff alleges that
defendant, while defendant was acting as his attorney in a state court matter, provided
plaintiff ineffective assistance of counsel in allowing plaintiff to enter into a stipulation to
settle his then-pending state court habeas proceeding. Plaintiff seeks damages in the
amount of $1.25 million because defendant's claimed negligence deprived plaintiff of the
right to pursue claims in his state court criminal and habeas proceedings. He has filed an
application to proceed without the prepayment of fees.
28 U.S.C. § 1915(a)( l ) authorizes district courts to allow civil litigants to
commence suit without the prepayment of the filing fee. However, other than in criminal
cases, "[a]n in forma pauper is litigant's access to the courts is a matter of privilege, not
of right, and should not be used to abuse the process of the courts." Williams v.
McKenzie, 834 F.2d 152, 154 (8th Cir. 1987). The district courts are required to screen
plaintiffs claims to determine whether the action
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2)(B).
In an effort to curb the flood of non-meritorious claims filed by prisoners,
Congress passed the Prison Litigation Reform Act of 1995 ("PLRA"), 110 Stat. 1321-71,
to "filter out the bad claims and facilitate consideration of the good." Jones v. Bock, 549

Case 1:21-cv-01021-CBK Document 17 Filed 10/07/21 Page 2 of 2 PageID #: 73

U.S. 199, 203-04, 127 S.Ct. 910, 914, 166 L.Ed.2d 798 (2007). The PLRA introduced a
three-strikes rule which 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.
28 U.S.C. § 1915(g). "In other words, for most three strikers, all future filing fees
become payable in full upfront." Bruce v. Samuels, 577 U.S. 82, 86, 136 S.Ct. 627, 630,
193 L.Ed.2d 496 (2016).
Plaintiff is subject to the three-strikes rule because, on at least three occasions, he
filed a civil proceeding which was dismissed as frivolous, malicious, or for failure to state
a claim upon which relief could be granted. Waliezer v. Doe, et al., 1:21-CV-O1020CBK (D.S.D. October

_h__ 2021). Plaintiff has not alleged that he is under imminent

danger of serious physical injury.
Now, therefore,
IT IS ORDERED:
1. Plaintiffs applications, Docs. 3 and 16, to proceed without the prepayment of
the filing fee are denied.
2. Plaintiff shall pay the $402 filing fee on or before 30 days from the date of this
order. Failure to do so will result in dismissal of the complaint.
DATED this£
�y of October, 2021.
BY THE COURT:

CHARLES B. KORNMANN
United States District Judge

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