United States District Court, D. South Dakota, Northern Division
LARRY D. SHARPFISH, JR., Plaintiff,
JON S. FLEMMER, KERRY M. CAMERON, ROBERT J. DOODY, CPL. KOREYWARE, Defendants,
CHARLES B. KORNMANN, United States District Judge
Plaintiff is incarcerated at the South Dakota State
Penitentiary serving sentences for ingestion of a controlled
substance and assault by an adult confined in jail. He has
filed a complaint pursuant to 41 U.S.CD § 1983 against
the state circuit court judge presiding over his criminal
cases in Roberts County, the Roberts County state's
attorney, the Chief Public Defender for the Sisseton-Wahpeton
Oyate, and a Sisseton, South Dakota, police officer. He
claims defendants violated his Fourth, Fifth, and Eighth
Amendment rights. He seeks a remand for resentencing before a
filed an application to proceed without the prepayment of the
filing fee. Under the Prison Litigation Reform Act, "if
a prisoner brings a civil action or files an appeal in
forma pauperis, the prisoner shall be required to pay
the full amount of a filing fee." 28 U.S.C. §
1915(b)(1). Plaintiff must pay the full $350 filing fee
notwithstanding whether or not the matter is subsequently
dismissed as frivolous after review under 28 U.S.C. §
1915(e)(2). A prisoner must pay, as an initial partial filing
fee, 20% of the greater of the average monthly deposits to
the prisoner's account or the average monthly balance of
the prisoner's account for the last six months. 28 U.S.C.
§ 1915(b)(1)(A) and (B). The Court fmds that plaintiff
is requked to make an initial partial filing fee of $9.40.
Prison Litigation Reform Act requires the Court to screen
prisoner complaints and dismiss any complaint that is
"(1) frivolous, malicious, or fails to state a claim
upon which relief may be granted or (2) seeks monetary relief
from a defendant who is immune from such relief." 28
U.S.C. § 1915A(b). I am required to give the
plaintiff's pro se complaint liberal construction and
identify any discemable cognizable claim. Solomon v.
Petray, 795 F.3d 777, 787 (8th Cir. 2015). I have
conducted an initial review as required by § 1915A.
United Sates Supreme Court has held that "a prisoner in
state custody cannot use a § 1983 action to challenge
'the fact or duration of his confinement.'"
Wilkinson v. Dotson, 544 U.S. 74, 78, 125 S.Ct.
1242, 1245, 161 L.Ed.2d 253 (2005) (quoting Preiser V.
Rodriguez, 411 U.S. 475, 489, 93 S.Ct. 1827, 36 L.Ed.2d
439 (1973)). Further, "a state prisoner's claim for
damages is not cognizable under 42 U.S.C. § 1983 if
'a judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence, '
unless the prisoner can demonstrate that the conviction or
sentence has previously been invalidated." Karsjens
v. Piper, 845 F.3d 394, 406 (8th Cir. 2017) (quoting
Edwards v. Balisok, 520 U.S. 641, 643, 117 S.Ct. 1584,
1586, 137 L.Ed.2d 906 (1997)). Plaintiff is seeking to
challenge his state court conviction and sentence. "He
must seek federal habeas corpus relief (or appropriate state
relief) instead." Wilkinson v. Dotson. 544 U.S.
at 78, 125 S.Ct. at 1245.
complaint must be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(i) because this matter is frivolous.
therefore, IT IS ORDERED:
Plaintiff s application, Doc 2, to proceed without the
prepayment of the filing fee is granted.
Plaintiff shall pay an initial filing fee in the amount of
$9.40 to the Clerk of the U.S. District Court.
Whenever the amount in plaintiffs trust account exceeds
$10.00, the institution having custody of the plaintiff is
hereby directed to forward monthly payments that equal 20% of
the funds credited the preceding month to the plaintiff's
trust account to the U.S. District Court Clerk's office
pursuant to 28 U.S.C. § 1915(b)(2), until the $350.00
filing fee is paid in full.
matter is dismissed.
disposition of this matter is a "strike" under 28
U.S.C. § 1915(g).
Pursuant to 28 U.S.C. § 1915 and Henderson v.
Norris, 129 F.3d 481, 484 (8th Cir. 1997), plaintiff is
notified that, if he decides to appeal this order of
dismissal to the United States Court of Appeals for the
(a) The filing of a notice of appeal from this order by
plaintiff, a prisoner, makes the prisoner liable for payment
of the full $455 appellate filing fees ...