Smith v. Young et al

Filing 223

ORDER denying 220 Motion for Leave to Proceed in forma pauperis on Appeal. Signed by U.S. District Judge Lawrence L. Piersol on 10/15/18. (SKK)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

BRUCE EDGAR SMITH,

4:16-CV-04014-LLP

Plaintiff,
vs.

ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS

SGT. KURTIS BROWN, CORRECTIONAL
OFFICER, INDIVIDUAL AND

CAPACITY;

ON APPEAL

OFFICIAL

BOYSEN,

JESS

CORRECTIONAL OFFICER, INDIVIDUAL

AND OFFICIAL CAPACITY; JUSTIN KUKU,
CORRECTIONAL

OFFICER;

STEINEKE, COORDINATOR

ANGELA
OF

WEST

HALL;
KEITH
DITMENSON,
UNIT
MANAGER; WEST HALL; HEATHER
BOWERS, HEAD

NURSE

OF HEALTH

SERVICE; MARY CARPENTER, HEAD
DOCTOR FOR HEALTH CARE; LONNA
VINK, NURSE HEALTH SERVICES; AND
DAVID STEPHAN, DCI, DIVISION OF
CRIMINAL INVESTIGATION;
Defendants.

Plaintiff, Bruce Edgar Smith, is an inmate at the South Dakota State Penitentiary(SDSP)

in Sioux Falls. On September 27, 2018, the court granted defendants' motion for summary
judgment. Docket 217. Smith now appeals the judgment and moves for leave to proceed in forma
pauperis on appeal. Dockets 219 and 220.

Smith was granted in foima pauperis status in this matter, and his appeal from the grant of

summary judgment is brought in good faitlr. See Docket 14. Ordinarily, Smith would qualify for

in forma pauperis status on appeal, pending assessment and payment ofthe required initial partial
filing fee under 28 U.S.C. § 1915(b). Under 28 U.S.C. § 1915(g), however,
[i]n 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 was
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.
When Smith commenced this action, he had already incurred two "strikes" under

28 U.S.C. § 1915(g). See Smith v. Dept. ofCorrection, et al, Ol-cv-04193(D.S.D. June 25, 2002)
(complaint dismissed for failure to state a claim upon which relief may be granted); Smith v.
Davidson et al, 12-cv-04105 (D.S.D. July 26, 2012)(complaint dismissed for failure to state a

claim upon which relief may be granted). During the pendency ofthis action, Smitlr acquired his
third "strike." 5'ee Smith v. United States Marshals et al, 16-CV-05083,(D.S.D. Oct. 20, 2016)
(complaint dismissed for failure to state a claim and the third strike assessed under 28 U.S.C.

§ 1915(g)). Smith appealed that ruling and the Court of Appeals for the Eighth Circuit summarily
affirmed the judgment of this court. Id. at Dockets 18 and 31. Smith then filed two additional actions

before the conclusion of the instant action. Smith y. Brown et al, 17-cv-4156,(D.S.D. March 26,
2018)(dismissed for failure to pay filing fee or to demonstrate "imminent danger of serious

physical injury"); Smith v. United States Marshals, 18-CV-4016, (D.S.D. March 26, 2018)
(dismissed for failure to pay filing fee or to demonstrate "imminent danger of serious physical
injury"). This court did not locate any Eighth Circuit case law discussing the situation where a
plaintiff acquires a third strike during the pendency of a district court case. The court did,
however, find a United States District Court District of Minnesota case that addressed this

particular issue. See Pitts v. Ramsey County, et al, 17-cv-4261,(D. Minn. Aug. 20, 2018). There,

the courtfound that28 U.S.C.§ 1915(g)barred plaintifffrom proceeding in forma pauperis on appeal
even though plaintiff proceeded in forma pauperis at the district court level. Id.

Additionally, Smith's pleadings in this matter do not establish that Smith is "under

imminent danger of serious physical injury" at the time of his appeal. The imminent danger of
serious physical injury exception "...focuses on the risk that the conduct complained ofthi-eatens
continuing or future injury, not on whether the inmate deserves a remedy for past misconduct."
Martin y, Shelton, 319 F.3d 1D48, 1050(8th Cir. 2003). In his affidavit in support of his motion
to proceed without prepayment of fees, Smith reiterates past events and expresses his

disagreement with this court's decision. Docket 221; Smith does not allege that he is currently
under imminent danger of serious physical injury. Thus, 28 U.S.C. § 1915(g) bars Smith from
proceeding in forma pauperis on appeal and his motion will he denied. Smith must pay the
$505.00 appellate filing fee in this matter. Accordingly,it is

ORDERED that Smith's motion to proceed without prepayment of fees (Docket 220)is
denied.

DATED this

day of October. 2018.
BY THE COURT:

tWRENCE L.PIERSOL

United States District Judge