Smith v. Campbell et al

Filing 3

MEMORANDUM DECISION denying 1 Motion for Leave to Proceed in forma pauperis. Plaintiff 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 any claims regarding Utah-based defendants and transfer of this case to the District of Idaho. Signed by Judge Robert J. Shelby on 01/31/2013. (asp)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

DANA L YDELL SMITH,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
vs.

Case No. 2:12-CV-1203-RJS

JUDGE TENA CAMPBELL et aI.,

District Judge Robert J. Shelby

Defendants.

Plaintiff, Dana Lydell Smith, an Idaho inmate, filed a civil rights complaint against
several defendants located in Utah and several defendants in Idaho. As discussed below, the
Court concludes that Smith must pay the filing fee before this case can proceed. The inJorma
pauperis statute allows an indigent prisoner to file a complaint in federal court without prepaying

the filing fee.' But, it also restricts those who have repeatedly filed complaints that are frivolous
or fail to state a valid claim. In relevant part, 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.,
"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. ''',
The Court is aware that Smith has filed numerous complaints in the United States District
Court for the District ofldaho that were dismissed as frivolous or failing to state a claim upon

128

U.S,C,S. § 1915(a) (2012).

21d. § 1915 (g).
3Cosby v. Meadors, 351 F.3d 1324, 1327 (10th Cir. 2003) (quoting In re Smith, 114 F.3d 1247, 1249 (D,C.Cir. 1997».

which relief may be granted.4 As observed by the Tenth Circuit, "a federal court may take notice
of proceedings in other federal courts when those proceedings are relevant to matters at issue. ",
Section 1915(g) applies here because (1) Smith 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 § 1915(g) is mandatory. Thus,
a federal prisoner who falls within the three-strikes provision is required to prepay the entire
filing fee before his claims may proceed further.
Smith tries to insert this complaint into the exception to § I 915(g)--Hunless the prisoner is
under imminent danger of serious physical injury"--by alleging problems with his right shoulder
and with mental instability. However, these problems involve his conditions of confinement in
Idaho and have nothing at all to do with the Utah defendants. Therefore, as to any claims against
Utah defendants, Smith does not qualifY for the exception. None of the Utah defendants are in a
position to rescue him from "imminent danger of serious physical inj ury." The Utah defendants
are thus dismissed unless Smith pays within thirty days the $350 filing fee due this Court.
Without the Utah defendants, the District of Utah would be an incorrect venue. 6 Any
remaining Idaho defendants would be properly sued only in the District ofIdaho. If this Court
does not receive within thirty days the $350 filing fee, it will transfer this case, with its remaining
Idaho defendants, to the District of Idaho. 7

4See Smith v. Dist. Court Clerk, No. I :08-CV-50 I-BL W (D. Idaho Feb. 12 2009) (dismissing complaint for failure to
state claim upon which relief may be granted and assessing strike);Smilh v. United States Const., No. I :08-CV-307-EJL (D.
Idaho Oct. 22, 2008) (same); Smith v. Idaho, No. 1:08-CV-219-8LW (D. Idaho June 6, 2008) (dismissing complaint for failure
to state claim upon which relief may be granted).
.
5See White v. Colorado, 157 F.3d 1226, 1232 (10th Cir. 1998) (citing St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d
1169, 1172 (lOth Cir. 1979».
6See Woodson v. Barlow, No. CIV-II-1349-D, 2012 U.S. Dist. LEXIS, *5-6 (W.D. Okla. May 10,2012) (report and
recommendation) (citing 28 U.S.C.S. § I39\(b) (2012».

7See 28 U.S.C.S. § 1406(a) (2012) ("The district court of a district in which is fi led a case laying venue in the wrong
division or district shall dismiss, or if it be in the interest ofjustice, transfer such case to any district or division in which it could

have been brought. ").

ORDER
Smith is not eligible to proceed without prepaying the filing fee in this case because he
has filed three or more cases in federal court which have been dismissed as failing to state a
claim or frivolous. And, the claims and defendants he sues in this Court do not make him eligible
for the exception to § 1915(g) in this venue. Therefore, Smith is 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 any claims
regarding Utah-based defendants and transfer of this case to the District ofIdaho.

J/

January, 2013.

BY THE COURT: