Lewandowski v. Day County Circuit Court

Filing 5

ORDER Dismissing Case and assessing third strike against plaintiff. Signed by Chief Judge Karen E. Schreier on 11/28/2011. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
GREGORY LEWANDOWSKI,
Plaintiff,
vs.
DAY COUNTY CIRCUIT COURT,
Defendant.

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Civ. 11-4106-KES

ORDER DISMISSING CASE

Plaintiff, Gregory Lewandowski, has filed a pro se civil rights lawsuit
against defendant Day County Circuit Court. Lewandowski moves to proceed
in forma pauperis in his lawsuit against defendant.
The Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915, requires
prisoners to make an initial partial filing payment where possible, even if
in forma pauperis status is sought. “When an inmate seeks in forma pauperis
status, the only issue is whether the inmate pays the entire fee at the
initiation of the proceedings or over a period of time under an installment
plan.” Henderson v. Norris, 129 F.3d 481, 483 (8th Cir. 1997) (internal
citations omitted). Determination of the partial filing fee is calculated
according to 28 U.S.C. § 1915(b)(1), which requires a payment of 20 percent of
the greater of:
(A)
(B)

the average monthly deposits to the prisoner’s account; or
the average monthly balance in the prisoner’s account for
the 6-month period immediately preceding the filing of the
complaint or notice of appeal.

Lewandowski has indicated that the average monthly deposits to his account
total $0 and that his average monthly balance is a negative $349.69. Thus, the
court finds Lewandowski is unable to make an initial partial filing payment
and it is waived. See 28 U.S.C. § 1915(b)(4) (“In no event shall a prisoner be
prohibited from bringing a civil action or appealing a civil or criminal judgment
for the reason that the prisoner has no assets and no means by which to pay
the initial partial filing fee.”).
But the inquiry does not end there. The PLRA also requires this court to
“screen” Lewandowski’s complaint to determine whether it should be
dismissed. Section 1915 provides an action must be dismissed if the court
determines the claim “(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.”
Lewandowski appears to assert that his Sixth and Fourteenth
Amendment rights were violated when he was convicted in Day County Circuit
Court of driving under the influence (DUI), his fifth offense. Although unclear,
the complaint appears to base this allegation on the improper use of an
uncounseled guilty plea to an earlier DUI charge to enhance the penalty for
his fifth (felony) DUI charge in 2007. In this respect, Lewandowski’s complaint
is identical to allegations in an earlier case, Lewandowski v. Day County Circuit
Court et. al.; Civ. 09-4089. His complaint was dismissed for failure to state a

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claim upon which relief may be granted after the court found his claim was a
habeas claim, not a § 1983 claim. The same reasoning applies here.
Lewandowksi’s complaint is actually a habeas corpus claim, not a
§ 1983 civil rights complaint. "When a state prisoner is challenging the very
fact or duration of his physical imprisonment, and the relief he seeks is a
determination that he is entitled to immediate release or a speedier release
from that imprisonment, his sole remedy is a writ of habeas corpus." Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973). Lewandowski’s claim that he was
wrongly convicted or that his sentence is illegal is clearly a challenge to the
"very fact or duration" of his imprisonment. As such, his sole remedy is a writ
of habeas corpus.
Lewandowski’s claim is also barred by Heck v. Humphrey, 512 U.S. 477
(1994). In Heck, the Supreme Court held that if a judgment favorable to a
prisoner in a § 1983 lawsuit would necessarily imply the invalidity of the
prisoner's conviction or the length of the prisoner's sentence, then a § 1983
action for damages does not arise until the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared invalid by an
authorized state tribunal, or called into question by the issuance of a federal
habeas writ. Id. at 486-87. Lewandowski has not alleged that his conviction
has been invalidated. Accordingly, he has failed to state a claim upon which

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relief may be granted and his complaint is dismissed pursuant to 28 U.S.C.
§ 1915.
The court also notes that this will be Lewandowski’s third case to be
dismissed pursuant to the screening procedures of 28 U.S.C. § 1915. The
Prison Litigation Reform Act (PLRA) 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) (emphasis added). Lewandowski has previously proceeded
in forma pauperis in two other cases that were dismissed pursuant to the
screening procedure of § 1915. See Civ. 09-4089, Civ. 11- 4125. Thus,
Lewandowski is now ineligible to litigate in forma pauperis unless he
demonstrates that he is in “imminent danger of serious physical injury.” 28
U.S.C. § 1915(g). Therefore, it is
ORDERED that Lewandowski’s motion to proceed in forma pauperis
(Docket 2) is granted. The initial partial filing fee is waived. The institution
having custody of plaintiff is directed that whenever the amount in plaintiff’s
trust accounts exceeds $10, monthly payments that equal 20 percent of the
funds credited the preceding month to plaintiff's trust account will be
forwarded to the U.S. District Court Clerk's Office pursuant to 28 U.S.C.

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§ 1915(b)(2), until the filing fee is paid in full. Plaintiff is advised the fee for
filing this civil action is $350, and he remains fully responsible for the fee.
IT IS FURTHER ORDERED that Lewandowski’s complaint is dismissed
for failure to state a claim upon which relief may be granted pursuant to 28
U.S.C. § 1915. Lewandowski is notified that he may not file any additional civil
cases in forma pauperis unless he is “under imminent danger of serious
physical injury” as set forth at 28 U.S.C. § 1915(g). Lewandowski may still file
civil cases if the complaint is accompanied by the $350 filing fee applicable to
civil actions.
Dated November 28, 2011.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

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