Germonto v. Utah Legislature, The et al

Filing 10

MEMORANDUM DECISION Vacating 3 Order; that Germonto is instead DENIED leave to proceed without prepayment of fees. He is ORDERED to pay the entire $350 statutory filing fee within thirty days from the date of this order. Failure to do so will result in the dismissal of the complaint. Signed by Judge Ted Stewart on 3/29/2012. (tls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
______________________________________________________________________________
|
FREDERICK GERMONTO,
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MEMORANDUM DECISION
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AND ORDER
Plaintiff,
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vs.
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Case No. 2:12-CV-208-TS
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UTAH LEGISLATURE et al.,
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District Judge Ted Stewart
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Defendants
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______________________________________________________________________________
Plaintiff, Frederick Germonto, an inmate at Utah State Prison, filed a civil rights
complaint against the Utah Legislature, Utah Governor Gary Herbert, Utah Board of Pardons and
members, and the United States, United States Department of Justice and United States Attorney
General Eric Holder. As discussed below, the Court concludes that Germonto must pay the
filing fee before this case can proceed.
The in forma pauperis statute authorizes a court to let an indigent prisoner file a
complaint in federal court without prepaying the filing fee. But, it also restricts those who have
1

repeatedly filed complaints that are frivolous or fail to state a valid claim. The relevant portion of
the statute provides:
In no event shall a prisoner bring a civil action . . . 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.
2

1

28 U.S.C.S. § 1915(a) (2012).

2

Id. § 1915 (g).

“These fee provisions are intended ‘to reduce frivolous prisoner litigation by making all prisoners
seeking to bring lawsuits or appeals feel the deterrent effect created by liability for filing fees.’”

3

Germonto has filed three complaints in the United States District Court for the District of
Utah that were dismissed as failing to state a claim upon which relief may be granted.4
Section 1915(g) applies here because (1) Germonto was a prisoner when he filed this
complaint; and (2) he has filed three or more prior cases in federal court that have been
dismissed as failing to state a claim or frivolous. The language of section 1915(g) is mandatory.
Thus, a prisoner who falls within the three-strikes provision is required to prepay the entire filing
fee before his federal claims may proceed further.
ORDER
Because he has filed three or more cases in federal court which have been dismissed as
failing to state a claim or frivolous, Germonto is not eligible to proceed further without prepaying
the filing fee in this case. Therefore, IT IS ORDERED that the Court's prior order granting
Germonto permission to proceed in forma pauperis is VACATED. IT IS ORDERED that

3
4

Cosby v. Meadors, 351 F.3d 1324, 1327 (10th Cir. 2003) (quoting In re Smith, 114 F.3d 1247, 1249 (D.C.Cir. 1997)).

See Germonto v. Utah, No. 2:92-CV-96 DS (D. Utah Mar. 26, 1992) (dismissing complaint for failure to state claim
upon which relief may be granted); Germonto v. Grey, No. 2:91-CV-438 DS (D. Utah June 27, 1991) (same); Germonto v.
Brown, No. 2:91-CV-435 DKW (D. Utah June 24, 1991) (same).

Germonto is instead DENIED leave to proceed without prepayment of fees. He is ORDERED to
pay the entire $350 statutory filing fee within thirty days from the date of this order. Failure to do
so will result in the dismissal of the complaint.
March 29, 2012.
BY THE COURT:

_____________________________
CHIEF JUDGE TED STEWART
United States District Court