Wilbourn v. South Dakota State Penitentiary
Opinion
South Dakota inmate James Wilbourn appeals the district court’s 1 preservice dismissal without prejudice of his pro se 42 U.S.C. § 1983 complaint. Additionally, Wilbourn has filed numerous motions requesting appointment of counsel, relief on the merits, and leave to conduct discovery.
In a September 1, 2005 order, the district court dismissed Wilbourn’s complaint without prejudice upon (1) determining Wilbourn had “three strikes” under 28 U.S.C. § 1915(g), 2 was not under imminent danger of serious physical injury, and had not paid the district court filing fee; and (2) opining Wilbourn had failed to state a claim upon which relief may be granted. We affirm the district court’s finding Wilbourn had “three-strikes” within the meaning of section 1915(g). See 28 U.S.C. § 1915(g); Martin v. Neb. Dep’t of Corr. Servs., 242 F.3d 376 (8th Cir. 2000) (unpublished per curiam) (affirming district court’s “three strikes” finding under § 1915(g)). Because Wilbourn’s IFP complaint was not properly before the district court, we decline to address the court’s alternative holdings.
The district court’s preservice dismissal without prejudice is affirmed, and Wilb-ourn’s pending motions are denied as moot. See 8th Cir. R. 47A(a).
. The Honorable Richard H. Battey, United States District Judge for the District of South Dakota.
. Section 1915(g) of Title 28, United States Code provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section 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.
Reference
- Full Case Name
- James Michael WILBOURN, Appellant, v. SOUTH DAKOTA STATE PENITENTIARY; J.P. Syverson, Head Nurse, in Her Individual and Official Capacity; Rose Garrison, Nurse, in Her Individual and Official Capacity; Larry Winters, Nurse, in His Individual and Official Capacity; Vincent Nesheim, Nurse, in His Individual and Official Capacity; Dr. J.H. Schaeffer, in His Individual and Official Capacity; Shawn Newland, Unit Counselor, in His Individual and Official Capacity; Cliff Fantory, Unit Manager, in His Individual and Official Capacity; Julie Spurrell, Supervisor, in Her Individual and Official Capacity, Appellees
- Status
- Unpublished