Smith v. Brown

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION .

BRUCE EDGAR SMITH, 4:17-CV-04156-LLP

Plaintiff,

vs. ORDER DISMISSING CASE

KURTIS BROWN, Correctional Officer,

individual and official capacity; JOHN SHYNE,

LIEUTENANT, Special Security,, SDSP

individual and official capacity, DAVID ,

STEPHAN, Agent at DCI, individual and official

capacity; KEITH DITMANSON, Unit Manager,

§DSP, individual and official capacity; DARIN

YOUNG, SDSP Warden, individual and official

capacity; JENNIFER WAGNER, Deputy

Warden, SDSP, individual and official capacity;

FRANK GEAGHAN, < Assistant Attorney |.

General, SD, individual and official capacity;

DOUGLAS P. BARNETT, Assistant Attorney

General, SD, individual and official capacity; ,

WILLIAM H. GOLDEN, Assistant-. Attorney

General, SD, individual and official capacity;

KATIE MALLERY, Assistant Attorney General, □

SD, individual and official capacity; PAIGE

BOCK, Assistant Attorney General, SD,

individual and official capacity, TAMMY

SUNDE, Assistant Attorney General, SD, .

individual and official capacity, ROBIN J.

HOUWMAN, Circuit Court Judge, individual

and official capacity, MARTY JACKLEY, | '

Attorney General , SD, individual and official

capacity, BOB DOOLEY, South Dakota State

Warden, individual and official capacity; and

HEATHER’ BOWERS, Nurse, individual and □

official capacity;

'. Defendants.

This mattet is before the court on its own motion. Plaintiff, Bruce Edgar Smith, filed this

lawsuit pursuant to 18 U.S.C. §§ 241 & 242. Docket 1. On February 6, 2018, the court denied

Smith’s motion ‘proceed in forma pauperis because Smith is a barred filer pursuant to 28 U.S.C.

§ 1915(g). Section 1915(g) precludes this court from granting in forma pauperis status to a prisoner

who “has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an

action or appeal ina 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.” The court found that three of Smith’s previous

complaints were dismissed as frivolous, malicious, or failed to state a claim and that Smith failed

to allege that he was under imminent danger of serious physical injury. As a result, the court

ordered Smith to pay the full filing fee of $400.00 to the clerk of court by March 8, 2018, if he

wished to proceed: Docket 6. The court further ordered that the case would be dismissed without

prejudice if Smith failed to comply. Jd. The March 8, 2018 deadline has passed, and Smith has not

paid the $400 filing fee. Smith did, however, file a letter asking this court to reconsider its February

6, 2018 order denying Smith in forma pauperis status. Docket 7.

A district court’s decision on a motion for reconsideration rests within its discretion.

Hagerman v, Yukon Energy Corp., 839 F.2d 407, 413 (8th Cir. 1988). “Motions for reconsideration

serve a limited function: to correct manifest errors of law or fact or to present newly discovered

evidence.” Jd. at 414. Smith claims no error of law, fact, or newly discovered evidence. See Docket

7, Rather, Smith expresses his strong disagreement with this court’s order. Smith argues he is under

imminent danger of serious physical injury as a result ofa “conspiracy to convict [him] of a felony

crime.” See id. at 1 .

, : 2

The imminent danger of serious physical injury exception “. . . focuses on the risk that the

conduct complained of threatens continuing or future injury, not on whether the inmate deserves a

remedy for past misconduct.” Martin vy. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). To establish

that the inmate is under imminent danger of serious physical injury, the inmate must make “specific □

fact allegations of ongoing serious physical injury, or of a pattern of misconduct evidencing a

likelihood of imminent serious physical injury.” Jd. In Ashley v. Dilworth, 147 F.3d 715, 717 (8th

Cir.1998), the Eighth Circuit stated that the exception applies only if the prisoner alleges that he

is in imminent danger “at the time of filing” and that “[a]llegations that the prisoner has faced

imminent danger in the past are insufficient.” (Emphasis in the original.) The Eighth Circuit also

has been reluctant to apply the imminent danger exception unless the alleged ongoing danger

exposes the prisoner to a risk of a truly serious physical injury. Compare Ashley, 147 F.3d at 717

(applying the imminent danger exception when a prisoner alleged that prison officials continued ‘

to place him near his enemies despite two prior stabbings), with Martin v. Shelton, 319 F.3d 1048,

1050 (8th Cir.2003) (refusing to apply the imminent danger exception when a plaintiff alleged that

prison officials made him work outside in extreme weather conditions that did not result in any

serious physical injuries).

While Smith claims to have met the standard, Smith’s allegation of imminent danger of

serious physical injury is a conspiracy to convict him of a felony crime. Docket 7 at 2. Smith

provides no specific factual allegations of how defendants are attempting to convict him nor does

he address the required imminent physical injury. See Martin, 319 F.3d at 1050; see also, Luedtke

v. Bertrand, 32 F.Supp.2d 1074, 1077 (E.D.Wis.1999) (“plaintiffs vague allegation of a

conspiracy among the defendants to beat, assault, injure, harass and retaliate against him are not

enough. These allegations are insufficient and lack the specificity necessary to show an imminent

threat of serious physical injury.”).

Furthermore, the court suspects that Smith is referencing one of his state criminal trials,

State v. Bruce Edgar Smith, Minnehaha County Crim. File No. 13-7319. There, Smith was indicted

for slimming a correctional officer and a jury found him not guilty of the offense. /d. It appears that

Smith is attempting to again seek a “remedy for past misconduct,” but this does not satisfy the

imminent threat of serious physical injury standard. See Martin, 319 F.3d at 1050. And, the fact

that Smith may have faced danger in the past also fails to satisfy the standard. See Ashley, 147 F.3d

at 717. Thus, Smith’s case is dismissed for failing to comply with the court’s order to pay the full

filing fee. See Fed. R. Civ. P. 41(b).

Therefore, it is ‘

ORDERED that Smith’s complaint (Docket 1) is dismissed without prejudice because

Smith failed to comply with this court’s order.

Dated this 26th day of March, 2018.

BY THE COURT:

Lei

. Qasr Sod

Lawrence L. Piersol

ATTEST: United States District Judge

MATTHEW W. THELEN, CLERK

BY: :

Deputy