Waliezer v. Howell et al

Filing 7

(VACATED) ORDER denying #6 Motion for Leave to Proceed in forma pauperis; denying #2 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) Modified on 11/23/2021 (SLT).

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HLED
OCT 0 7 2021

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

CLERK

NORTHERN DIVISION

SHANE D. WALIEZER,

I:21-CV-0I027-CBK

Plaintiff,
ORDER

vs.

BRAD HOWELL,Sheriff Codington County,
professionally and individually; OFFICER
JOHN DOE #1, Deputy Sheriff Codington
County, professionally and individually; and
OFFICER JOHN DOE #2, Deputy Sheriff
Codington County, professionally and
individually;
Defendants.

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

John Doe defendants, violated his Constitutional rights as a pretrial detainee when they
transported him from Washington State to South Dakota on an extradition warrant.

Plaintiff claims the defendants drove erratically and in excess ofthe speed limits.
Plaintiff further alleges that John Doe #1 exposed himself to plaintiff on two separate
occasions when defendant urinated on the side ofthe Interstate highway. Plaintiff seeks
an order requiring defendants to review all statutes and policies with regard to operating

county vehicles, written reprimands entered into their employee files, an order requiring
John Doe #1 to attend P.R.E.A.(Prison Rape Elimination Act of2003) offender classes
for defendant's indecent exposure, a criminal investigation be initiated as to John Doe

#I's actions, and $500,000 in damages. Plaintiff has filed an application to proceed
without the prepayment offees.

28 U.S.C. § 1915(a)(1) authorizes district courts to allow civil litigants to
commence suit without the prepayment ofthe filing fee. However, other than in criminal

cases,"[a]n informa pauperis litigant's access to the courts is a matter of privilege, not

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ofright, and should not be used to abuse the process ofthe 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 ofthe good." Jones v. Bock. 549
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 ifthe 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-01020-

CBK(D.S.D. October

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

danger of serious physical injury.
Now,therefore,
IT IS ORDERED:

1. Plaintiffs applications. Docs. 2 and 6,to proceed without the prepayment of
the filing fee are denied.

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2. Plaintiff shall pay the $402 filing fee on or before 30 days from the date ofthis
order. Failure to do so will result in dismissal ofthe complaint.

DATED thisc'^'^ day of October, 2021.
BY THE COURT:

CHARLES B. KORNMANN

United States District Judge