Lewandowski v. Schreier

Filing 7

ORDER denying 6 Motion for Reconsideration. Signed by U.S. District Judge Lawrence L. Piersol on 6/5/2014. (JLS)

FILEr

UNITED STATES DISTRICT COURT

JUN 05 20~'i

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

GREGORY ALLEN LEWANDOWSKI,
Plaintiff,
vs.
KAREN E. SCHREIER,
Defendant.

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Civ. 14-4063-LLP

ORDER DENYING MOTION FOR
RECONSIDERATION

Plaintiff, Gregory Allen Lewandowski, filed a pro se civil rights lawsuit pursuant to 42
U.S.c. § 1983 and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Dockets 1,2. On May 14,2014, the Court denied Lewandowski leave to proceed in forma pauperis,
citing the three-strike rule and noting that Lewandowski could no longer proceed in forma pauperis
absent a showing that he is under imminent danger of serious physical injury. Docket 5.
Lewandowski now requests that the Court reconsider its ruling. Docket 6. To support his argument,
Lewandowski represents that prior dismissals were not made pursuant to 28 U.S.C. §
1915(e)(2)(8)(i)-(iii), and thus did not constitute "strikes" under the PLRA's three-strike rule.
The Court, however, has reviewed Lewandowski's prior dismissals and finds that at least
three cases wherein Lewandowski was granted leave to proceed in forma pauperis were dismissed
pursuant to § 1915(e)(2)(8)(ii) for failure to state a claim upon which relief may be granted. See
Lewandowski v. Day Cnty. Cir. Ct. et al., Civ. 09-4089, Docket 17; Lewandowski v. Flemmer, Civ.

11-4125, Docket 6; Lewandowski v. Day Cnty. Cir. Ct., Civ. 11-4106, Docket 5. In fact, when the
Court dismissed Lewandowski's complaint in Lewandowski v. Day Cnty. Gr. Ct., Civ. 11-4106, the
Court informed Lewandowski that the dismissal constituted his third strike and that he was
henceforth "ineligible to litigate in forma pauperis unless he demonstrates that he is in 'imminent
danger of serious physical injury. '" Lewandowski v. Day Cnty. Cir. Ct., Civ. 11-4106, Docket 5 at
4 (quoting 28 U.S.C. § 1915(g». Accordingly, the Court properly invoked the three-strike rule herein
by denying Lewandowski leave to proceed in forma pauperis.

Lewandowski also takes issue with the assessed filing fee, which he believes should amount
to $350 rather than $400. The cost offiling a civil action, suit, or proceeding in federal district court
is $350.28 U.S.C. § 1914(a). Pursuant to the District Court's Miscellaneous Fee Schedule, however,
an additional $50 is assessed in civil actions, suits, or proceedings to cover administrative costs. !d.
This additional fee does not apply to persons granted in fonna pauperis status under 28 U.S.C. §
1915.ld Because Lewandowski was not granted leave to proceed in fonna pauperis in this action,
he must pay a $400 filing fee. It is therefore
ORDERED that Lewandowski's motion for reconsideration (Docket 6)
Lewandowski

must~

the $400 filing fee to the Clerk, U.S. District Court.

Dated this _'.:>_'':''''day ofJune, 2014.

RENCE L. PIERSOL
TED STATES DISTRICT JUDGE
ATTEST:

JOSEPH HAAS, CL~

BY:~

DEPlfY

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2

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denied.