Kurtenbach v. Hughes County et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
MATTHEW KURTENBACH,
Plaintiff,
vs.
HUGHES COUNTY and
RELIANCE TELEPHONE SERVICES,
Defendants.
CIV. 21-3003-JLV
ORDER
On April 23, 2021, the court entered an order dismissing plaintiff’s
complaint “without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1), for failure to state a claim upon which relief may be granted.”
(Docket 7 at p. 6). 	On July 19, 2021, plaintiff filed a motion for reconsideration
of the court’s order. 	(Docket 15). 	The court denied plaintiff’s motion for
reconsideration. 	(Docket 18). 	Plaintiff appealed to the United States Court of
Appeals for the Eighth Circuit. 	On October 25, 2021, the Eighth Circuit
summarily affirmed the judgment of the district court. 	(Docket 21). 	On
January 10, 2022, plaintiff filed a second motion for reconsideration of the April
23, 2021, order and a motion seeking permission to file an amended complaint.
(Docket 24). 	On January 25, 2022, the court denied plaintiff’s second motion
for reconsideration and motion to file an amended complaint. 	(Docket 25).
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On February 22, 2022, Mr. Kurtenbach filed a notice of appeal, a second motion
to proceed in forma pauperis on appeal, a copy of his prisoner’s trust account and
an affidavit pursuant to Fed. R. App. P. 24(a)(1). 	(Dockets 26-29).
Federal Rule of Appellate Procedure 24 and 28 U.S.C. § 1915 allow an
indigent party to seek leave to appeal in forma pauperis. 	Section 1915 requires
the court to determine if the appeal is taken in “good faith.” 	28 U.S.C.
§ 1915(a)(3). 	“Good faith in this context is judged by an objective standard and
not by the subjective beliefs of the appellant.” 	Maddox v. Chisago Cty. Sheriff
Office, No. 10-CV-2133, 2010 WL 3119393, at *2 (D. Minn. Aug. 5, 2010) (citing
Coppedge v. United States, 369 U.S. 438, 444-45 (1962)). 	In determining
whether an appeal is taken in good faith, the court must decide “whether the
claims to be decided on appeal are factually or legally frivolous.” 	Id. (citing
Coppedge, 369 U.S. at 444-45). 	“An appeal is frivolous, and therefore cannot be
taken in good faith, ‘where it lacks an arguable basis either in law or in fact.’ ”
Id. (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989).
The court finds Mr. Kurtenbach’s second appeal is not taken in good faith
because it is legally frivolous. 	Mr. Kurtenbach seeks to raise the same issues
addressed in the order dismissing the case, the motion for reconsideration and
the decision of the United States Court of Appeals for the Eighth Circuit.
Compare Dockets 7 at pp. 2-6, 15, 18 & 21. 	This case is closed. 	The court
finds Mr. Kurtenbach would “lack[] an arguable basis either in law or in fact” in
an appeal of the court’s order denying the second motion for reconsideration,
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Docket 25. 	Neitzke, 490 U.S. at 325. 	The court must deny Mr. Kurtenbach’s
second motion for leave to proceed in forma pauperis on appeal.
ORDER
Accordingly, it is
ORDERED that Mr. Kurtenbach’s second motion for leave to appeal in
forma pauperis (Docket 27) is denied.
IT IS FURTHER ORDERED that Mr. Kurtenbach shall pay the $505
appellate filing fee to the Clerk of the United States District Court for the District
of South Dakota or seek leave to proceed in forma pauperis in the United States
Court of Appeals for the Eighth Circuit.
Dated March 7, 2022.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
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