Kurtenbach v. Reliance Telephone Services

Background

Matthew Kurtenbach, identified in the order as a prisoner, applied to proceed in this case without paying the filing fee. Under 28 U.S.C. § 1915(g), commonly called the prisoner “three-strikes” rule, a prisoner generally may not proceed without prepaying the fee after three earlier federal actions or appeals were dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner shows an imminent danger of serious physical injury.

The court previously ordered Kurtenbach to explain why his application should not be denied. The court identified three earlier dismissals as possible strikes: an action dismissed by the District of South Dakota for failure to state a claim; an action dismissed by the District of Wyoming under Rule 12(b)(6), which permits dismissal for failure to state a legally sufficient claim; and an action dismissed by the District of South Dakota under the rule from Heck v. Humphrey.

The three earlier dismissals

First, the District of South Dakota dismissed Kurtenbach’s claims under the Electronic Communications Privacy Act during review of the complaint for failure to state a claim. Kurtenbach argued that the dismissal should not count because his appeal was still pending when he filed this case. The court rejected that argument based on the Supreme Court’s decision in Coleman v. Tollefson, which requires courts to count the dismissal while it remains on appeal. The court noted that the appeal had since been summarily affirmed and that the dismissal had not been reversed or vacated. It therefore counted this dismissal as a strike.

Second, the District of Wyoming dismissed Kurtenbach’s two state-law claims under Rule 12(b)(6), finding that he had not stated a plausible claim for relief. Kurtenbach argued that the dismissal should not count because the Wyoming court did not label it a strike and did not dismiss the case during preservice screening. The court rejected both arguments, explaining that § 1915(g) does not require an earlier court to label a dismissal as a strike and does not limit strikes to preservice dismissals.

Kurtenbach also argued that his medical-malpractice claim had been dismissed for failure to complete an administrative review process, which he compared to a type of exhaustion dismissal that does not count as a strike. The court concluded that the Wyoming court had actually dismissed the claim because Kurtenbach had not adequately pleaded that he had completed the required review process. Because the earlier court’s stated basis was failure to state a claim, rather than failure to exhaust, the dismissal counted as a strike.

Third, the District of South Dakota dismissed Kurtenbach’s claims against Wyoming officials under Heck v. Humphrey. That rule generally bars a damages claim under 42 U.S.C. § 1983 when success would undermine an existing conviction or sentence, unless the conviction or sentence has already been overturned or otherwise invalidated. The court concluded that a dismissal under Heck counted as a strike because the claim was dismissed for failure to state a claim and because favorable termination of the conviction or sentence was necessary to proceed.

Kurtenbach argued that the Heck dismissal should not count because the earlier court had not labeled it a strike, because the relevant appellate decision was not binding, because some courts had treated certain Heck dismissals differently, and because he believed Heck should not have applied in his circumstances. The court rejected these arguments. It stated that it could consider only the grounds the earlier court actually gave for dismissal and could not use the present fee-waiver proceeding to challenge the earlier judgment.

Ruling and effect

The court found that Kurtenbach had accrued three strikes and had not alleged imminent danger of serious physical injury. It therefore denied his application to proceed without paying the filing fee. The order did not dismiss the case at that point. Instead, it required Kurtenbach to pay the $402 filing fee by December 30, 2021. The order stated that failing to pay would result in a recommendation that the case be dismissed without prejudice for failure to prosecute.

The supplied case metadata identifies David Doty as the judge, but the order itself is signed by Tony N. Leung, United States Magistrate Judge. This summary uses the judge who signed the order.