Todd v. Flory et al

Filing 11

MEMORANDUM DECISION AND ORDER vacating prior IFP order 5 and Todd is denied permission to further proceed IFP. He is ordered to pay the $350 filing fee within 30 days from the date of this order. Failure to do so will result in the dismissal of the complaint. Signed by Judge Dee Benson on 2/4/15. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
______________________________________________________________________________
SHAYNE E. TODD,

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MEMORANDUM DECISION
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AND ORDER
Plaintiff,
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vs.
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Case No. 2:14-CV-860 DB
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PERRI FLORY et al.,
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District Judge Dee Benson
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Defendants.
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______________________________________________________________________________
Plaintiff, Shayne E. Todd, an inmate at Central Utah Correctional Facility, filed a civil
complaint against Defendants, all Utah Department of Corrections employees. The Court
granted his in forma pauperis (IFP) application. As discussed below, the Court concludes that
Todd must pay the filing fee in full before this case can proceed and thus vacates its order
granting the IFP application.
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) (2014).

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

Todd has filed three cases that have been dismissed as frivolous or failing to state a
claim.4 Section 1915(g) applies here because Todd 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, such as Todd, who falls within the three-strikes provision must prepay the entire
filing fee before his claims may proceed.
ORDER
Todd is ineligible to proceed without prepaying the filing fee here because he has, as an
inmate, filed three or more cases or appeals in federal court which have been dismissed as
frivolous or failing to state a claim.

3

Cosby v. Meadors, 351 F.3d 1324, 1327 (10th Cir. 2003) (quoting In re Smith, 114 F.3d 1247, 1249
(D.C.Cir. 1997)).
4

Todd v. Patterson, No. 10-4069, 2010 U.S. App. LEXIS 20887, at *6 (10th Cir. Oct. 6, 2010) (noting that,
because this appeal of a district-court dismissal under 28 U.S.C. § 1915(e)(2)(B) was dismissed as frivolous, "'both
dismissals count as strikes' against Mr. Todd" (referring to Todd v. Peterson, No. 2:04-CV-984 CW, 2010 U.S. Dist.
LEXIS 23089 (D. Utah Mar. 23, 2009) (citation omitted)); Todd v. Bigelow, No. 2:12-CV-28-CW (D. Utah July 23,
2013) (dismissing case under 28 U.S.C. § 1915(e)(2)(B)).

Therefore, the Court's prior order granting Todd's IFP application is VACATED and
Todd 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.
February 4, 2015.
BY THE COURT:

_____________________________
DEE BENSON
United States District Judge