Smith v. Boysen et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
BRUCE EDGAR SMITH,
Plaintiff,
vs.
JESS BOYSEN,CORRECTIONAL OFFICER,
IN HER INDIVIDUAL AND OFFICIAL
CAPACITY; DARIN YOUNG,WARDEN,IN
HIS INDIVIDUAL AND OFFICIAL
CAPACITY; TROY PONTO,ASSOCIATE
WARDEN,IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; JOHN SHYNE,
LIEUTENANT,IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; KURTIS BROWN,
SERGEANT,IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; DAVID STEPHAN,
DCI AGENT,IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; JUSTIN KUKU,
CORRECTIONAL OFFICER,IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
KEITH DITMANSON, UNIT MANAGER,IN
HIS INDIVIDUAL AND OFFICIAL
CAPACITY; JESSICA COOK,ASSOCIATE
WARDEN,IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY;PAIGE W.BOCK,
SOUTH DAKOTA STATE ATTORNEY
GENERAL,IN HER INDIVIDUAL AND
OFFICIAL CAPACITY; TAMMY SUNDE,
SOUTH DAKOTA STATE ATTORNEY
GENERAL,IN HER INDIVIDUAL AND
OFFICIAL CAPACITY; JENNIFER
DREIRSKE,DEPUTY WARDEN,IN HER
INDIVIDUAL AND OFFICIAL CAPACITY;
ASHLEY MCDONALD,ATTORNEY FOR
THE SOUTH DAKOTA STATE
PENITENTIARY,IN HER INDIVIDUAL AND
OFFICIAL CAPACITY; DAVID LENTSCH,
UNIT MANAGER;IN HIS INDIVIDUAL
AND OFFICIAL CAPACITY; HEATHER
4:2I-CV-04186-LLP
ORDER DENYING PLAINTIFF'S MOTION
TO PROCEED IN FORMA PAUPERIS AND
REQUIRING PLAINTIFF TO PAY THE
FULL FILING FEE
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BOWERS,NURSE,IN HER INDIVIDUAL
AND OFFICIAL CAPACITY; DR. MARY
CARPENTER,PIERRE'S MEDICAL
DIRECTOR,IN HER INDIVIDUAL AND
OFFICIAL CAPACITY; UNKNOWN
PHYSICAL THERAPIST,JAMISON ANNEX,
A CONTRACTOR FOR HEALTH SERVICES
FROM AN OUTSIDE SOURCE,IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY,
Defendants.
Plaintiff, Bruce Edgar Smith, filed a pro se civil rights lawsuit under 42 U.S.C. § 1983.
Doc. 1. Smith is an inmate at the South Dakota State Penitentiary. Id. at 1. Stinson moves for
leave to proceed in forma pauperis and included his prisoner trust account report. Docs. 2 and 3.
Under the Prison Litigation Reform Act(PLRA), a prisoner who "brings a civil action or
files an appeal in forma pauperis ... shall be required to pay the full amount of a filing fee." 28
U.S.C. § 1915(b)(1). The court may, however, accept partial payment ofthe initial filing fee
where appropriate. Therefore,"[wjhen an inmate seeks pauper status, the only issue is whether
the inmate pays the entire fee at the initiation ofthe proceeding or over a period of time under an
installment plan." Henderson v. Norris, 129 F.3d 481,483 (8th Cir. 1997)(alteration in original)
(quoting McGore v. Wrigglesworth, 114 F.3d 601,604(6th Cir. 1997)). Significantly, the PLRA
prohibits a prisoner from requesting in forma pauperis status in an action or appeal
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.
28 U.S.C. § 1915(g)(emphasis added). Smith has previously proceeded in forma pauperis in
three other cases that were dismissed pursuant to the screening procedures of § 1915. See Smith
V. Dept. ofCorrections, 4:01-CV-04193-LLP, Doc. 8 at 7; Smith v. Davidson, 4:12-CV-04105-
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KES,Doc. 8 at 6; Smith v. United States Marshals, 5:16-CV-05083-KES, Doc. 8 at 5-6.
Moreover, Smith has been denied permission to proceed in forma pauperis on a prior occasion
because he was barred by the three-strike rule and could not demonstrate that he was under
imminent danger of serious physical injury. See Smith v. United States Marshals,4:18-CV-
04016-LLP, Doc. 4.
Smith is therefore barred from proceeding in forma pauperis in any subsequent action,
including the instant action, absent a showing that he is under imminent danger of serious
physical injury. Among Smith's claims, one of them does allege an ongoing injury. See Doc. 1 at
30-33. Smith alleges that he had back surgery on August 27, 2020.Id. at 30. He alleges that he
was under a medical order for "no bending, twisting, or flexing[.]" Id. He alleges that, despite
this order, a physical therapist that he saw five times in September 2020 bent his legs up to his
chest repeatedly and held his legs in the air, causing him extreme pain. Id. at 31. He claims that
this therapy reinjured his back, causing him stabbing pains in his lower back and shooting pains
down both legs. Id. at 32. He claims that his back has stopped healing and that he needs another
surgery, but he is not interested in having that surgery performed. Id. at 33.
The Eighth Circuit Court of Appeals has explained that a prisoner seeking in forma
pauperis status who is barred by the three-strike rule must show "specific fact allegations of
ongoing serious physical injury, or of a pattern of misconduct evidencing the likelihood of
imminent serious physical injury." Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003)(citing
Abdul-Akhar v. McKelvie, 239 F.3d 307, 315 n.l (3d Cir. 2001)(en banc)). In Martin, the Eighth
Circuit referred not only to "ongoing serious physical injury" but also "ongoing danger." Id.
Smith fails to show either a pattern of misconduct evidencing the likelihood of imminent
serious physical injury or an ongoing serious physical injury. See Doc. 1 at 30-33. He makes no
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claims showing the likelihood of a new injury. As to ongoing serious physical injury, he shows
no ongoing danger as required by Martin. Although he is not interested in surgery, he does
acknowledge that there is a new plan for treating his back, and he makes no allegations regarding
that new plan. See Doc. 1 at 33. Smith claims that he is waiting to see if this new plan will work.
Id. Thus, Smith cannot meet the "imminent danger of serious physical harm" exception of
§ 1915(g).
Because Smith has failed to demonstrate that he is under imminent danger of serious
physical injury, the Court denies his request to proceed in forma pauperis. Doc. 2. Smith must
pay the requisite $400 filing fee to proceed with this action by October 21, 2020, or his
Complaint will be dismissed. Accordingly, it is ORDERED:
1. That Smith's motion for leave to proceed in forma pauperis. Doc. 2, is denied. Smith
must pay the $400 filing fee to the Clerk, U.S. District Court by January 18, 2022, or
his complaint will be dismissed.
Dated this 20th day of December,2021.
BY THE COURT:
awrence L. Piersol
United States District Judge
ATTEST:
MATTHEW THELEN,CLERK
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