Caldwell v. Guardian & Conservator Services et al

Filing 3

MEMORANDUM DECISION and ORDER denying 1 Motion for Leave to Proceed in forma pauperis. Defendant 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 10/21/2014. (blh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

JOHNNY RAY CALDWELL,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
vs.

Case No. 2:14-CV-747 TS

GUARDIAN & CONSERVATOR SERVS. et al.,

District Judge Ted Stewart

Defendants.

Plaintiff, Johnny Ray Caldwell, an inmate at Salt Lake County Metro Jail, filed a civil
complaint against Defendants, all apparently related to the Social Security Administration. He
applies to proceed in forma pauperis. As discussed below, the Court concludes that Caldwell
must pay the filing fee in full 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
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.'

1

28 U.S.C.S. § 1915(a) (2014).

2

Jd § 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."',
Caldwell has filed three cases that have been dismissed as frivolous or failing to state a
claim. 4 Section 1915(g) applies here because Caldwell was a prisoner when filing this complaint,
and he has filed three or more prior cases or appeals in federal court that have been dismissed as
frivolous or failing to state a claim. The language of section 1915(g) is mandatory. Thus, a
federal prisoner who falls within the three-strikes provision must prepay the entire filing fee
before his claims may proceed. Caldwell has not (credibly) alleged that he "is in imminent
danger of serious physical injury"; therefore\ he does not come within the exception to section
1915(g).
ORDER
Caldwell is ineligible to proceed without prepaying the filing fee here because he has
filed three or more cases or appeals in federal court which have been dismissed as frivolous or
failing to state a claim, and the complaint does not fall within the three-strikes exception.

3

Cosbv v. Meadors, 351 F.3d 1324, 1327 ClOth Cir. 2003) (quoting In re Smith, 114 F.3d 1247, 1249
(D.C.Cir. 1997)).
4

Caldwell v Utah State Prison, 2:05-CV-740-TS (D. Utah July 5, 2007) (dismissing case as frivolous under
28 U.S.C.S. § 1915(e)(2)(B)); Caldwell v. Utah State Tax Comm'n, No. 2:05-CV-226-PGC (D. Utah Nov. 29, 2005)
(dismissing case under 28 U.S.C. § 1915(e)(2)(B) because Plaintiff sought monetary judgment from state entity
immune from suit under Eleventh Amendment); Caldwell v Utah State Prison, 2:04-CV-176-DAK (D. Utah July 27)
(dismissed for failure to state claim), a.ffd, No. 05-4046 (lOth Cir. June 25, 2005).

Therefore, Caldwell is DENIED permission to further proceed IFP. 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.
October

)!

4

Y, 2014.
BY THE COURT: