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Smith v. Brown
United States District Court, D. South Dakota, Southern Division
March 26, 2018
BRUCE EDGAR SMITH, Plaintiff,
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, SDSP, 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.
ORDER DISMISSING CASE
Lawrence L. Piersol, United States District Judge
matter 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 to 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 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."
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.
Id. 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.
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." Id. 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 of a "conspiracy
to convict [him] of a felony crime." See Id. at
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 v. 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." Id. 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]
negations 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).
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
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. Id. 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).
that Smith's complaint (Docket 1) is dismissed without
prejudice because Smith failed to ...