Waliezer v. Larson

Filing 23

ORDER granting 18 Motion to Vacate 17 Order Denying Plaintiff's Application to Proceed In Forma Pauperis; granting 3 Motion for Leave to Proceed in forma pauperis ; denying as moot 20 Motion for Leave to Proceed in forma pauperis. Signed by U.S. District Judge Charles B. Kornmann on 11/17/2021. Mailed to Plaintiff and the Financial Department of Codington County Jail (VMM)

Case 1:21-cv-01021-CBK Document 23 Filed 11/17/21 Page 1 of 2 PageID #: 90

UNITED STATES DISTRICT COURT

FILED

DISTRICT OF SOUTH DAKOTA

HOV 1 1 2021

NORTHERN DIVISION

SHANE D. WALIEZER,

1:21-CV-01021-CBK

Plaintiff,
ORDER GRANTING MOTION TO
vs.

VACATE ORDER AND

JEFF LARSON,in his individual and
official capacity.

ORDER GRANTING APPLICATION TO
PROCEED IN FORMA PAUPERIS

Defendant.

Plaintiff filed a pro se complaint under 42 U.S.C. § 1983. Plaintiff alleged that

defendant provided plaintiff ineffective assistance of counsel during plaintiffs then-

pending state court habeas proceeding. Plaintiff sought damages in the amount of$1.25
million.

Plaintiff filed an application to proceed informa pauperis without the prepayment

of fees. I found that plaintiff was subject to the three strikes provision of the Prison
Litigation Reform Act, U.S.C. § 1915(g) and must pay the filing fee.
Plaintiff filed a motion to vacate the order denying his application to proceed in

forma pauperis and a notice of interlocutory appeal, along with a motion to proceed on
appeal informa pauperis without the prepayment ofthe appellate filing fee. The appeal
has not been transmitted to the Court of Appeals pending ruling on his application to
proceed informa pauperis.

The United States Court of appeals has held that § 1915(g)"does not apply unless

the inmate litigant has three strikes at the time he files his lawsuit or appeal." Campbell
V. Davenport Police Dept.. 471 F.3d 952, 952-53 (8th Cir. 2006). Plaintiff had not been

assessed a third strike prior to the time he filed the instant action. Therefore, § 1915(g)
does not apply in this case.

Case 1:21-cv-01021-CBK Document 23 Filed 11/17/21 Page 2 of 2 PageID #: 91

Now,therefore,
IT IS ORDERED:

1. Plaintiffs motion. Doc. 18, to vacate the Court's order denying plaintiffs

application to proceed informa pauperis is granted. The order. Doc. 17, is vacated.
2. Plaintiffs application. Doc. 20, to proceed on appeal informa pauperis without
the prepayment ofthe filing fee is denied as moot.

3. Plaintiffs application, Dos. 3, to proceed without the prepayment ofthe filing
fee is granted.

4. Plaintiff is unable to pay an initial filing fee and the initial filing fee is waived
pursuant to 28 U.S.C. § 1915(b)(4).

5. Whenever the amount in plaintiffs trust account exceeds $10.00,the institution

having custody ofthe plaintiff is hereby directed to forward monthly payments that equal
20% ofthe funds credited the preceding month to the plaintiffs trust account to the U.S.
District Court Clerk's office pursuant to 28 U.S.C. § 1915(b)(2), until the $350.00 filing
fee is paid in full.

6. The Clerk of Court shall send a copy of this order to the appropriate official at

plaintiffs institution.
DATED this

^
day of November, 2021.
BY THE COURT:

CHARLES B. KORNMANN

United States District Judge