United States District Court, D. Montana, Helena Division
WAYNE A. HUSSAR, II and SANDRA HUSSAR, Plaintiff,
JUDGE JAMES C. REYNOLDS, MONTANA ATTORNEY GENERAL, STATE OF MONTANA, MONTANA DEPARTMENT OF JUSTICE, and PUBLIC DEFENDER NICOLE KLEIN, Defendants.
FINDINGS AND RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE TO DENY MOTION TO PROCEED IN FORMA
JOHNSTON UNITED STATES MAGISTRATE JUDGE.
Wayne Hussar, a state prisoner proceeding without counsel,
filed a motion to proceed in forma pauperis (Doc. 1) and a
proposed Complaint alleging Defendants illegally convicted
and sentenced him. (Doc. 2.) Mr. Hussar is subject to the
three strikes provision of 28 U.S.C. § 1915(g) and
therefore the Motion to Proceed in Forma Pauperis should be
to proceed in forma pauperis is discretionary with the Court.
See 28 U.S.C. § 1915(a). 28 U.S.C. §
1915(g) provides as follows:
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.
Hussar has filed at least three civil actions which have been
dismissed as frivolous or for failure to state a claim.
See Hussar v. Touchette, CV-11-00011-H-DWM (D. Mont.
May 6, 2011 Judgment of dismissal based upon Heck v.
Humphrey, 512 U.S. 477 (1994) which was plain on the
face of the complaint, designated as strike because
frivolous, not appealed); Hussar v. Abendroth, et
al., CV-12-00076-M-DLC (D. Mont. October 30, 2012
Judgment of dismissal, designated as strike for failure to
state a claim, not appealed); and Hussar v. Nichals,
CV-12-00045-H-DLC (D. Mont. Judgment of dismissal filed
January 29, 2013, designated as a strike for failure to state
a claim, not appealed.)
Hussar has exceeded the three “strikes” allowed
by the Prison Litigation Reform Act to a prisoner attempting
to proceed in forma pauperis in a federal civil lawsuit. As
such, he cannot proceed in forma pauperis in the instant case
unless he can show that he qualifies for the “imminent
danger of serious physical injury” exception of 28
U.S.C. § 1915(g).
the exception, Mr. Hussar must allege facts that demonstrate
that he was “under imminent danger of serious physical
injury” at the time of the filing of the complaint.
Andrews, 493 F.3d at 1053 (“it is the
circumstances at the time of the filing of the complaint that
matters for the purposes of the ‘imminent danger'
exception under § 1915(g)”). Mr. Hussar is
complaining of an illegal conviction and sentencing. His
claims are barred by Heck v. Humphrey, 512 U.S. 477
(1994) and do not satisfy the imminent danger exception to
section 1915(g). Andrews v. Cervantes, 493 F.3d
1047, 1055-56 (9th Cir. 2007). The motion to proceed in forma
pauperis should be denied.
ordinarily litigants are given a period of time to pay the
full filing fee of $400.00, Mr. Hussar should not be allowed
to do so in this case. Mr. Hussar has been made aware that he
is subject to the provisions of 28 U.S.C. § 1915(g) and
cannot submit such filings without payment of the filing fee
or demonstrating imminent danger of serious physical harm.
See Hussar v. Lewis and Clark County Detention
Center, Civil Action No. 17cv55-H-DLC-JTJ; Hussar v.
Almandinger, et al., Civil Action No. 18cv51-H-DMM-JTJ.
addition, Mr. Hussar is not entitled to a fourteen-day period
to object. See Minetti v. Port of Seattle, 152 F.3d
1113, 1114 (9th Cir. 1998) (per curiam).
motion for reconsideration will be entertained.
upon the foregoing, the Court issues the following:
1. Sandra Hussar should be terminated as a plaintiff in this
2. Mr. Hussar's Motion to Proceed in Forma Pauperis (Doc.
1) should be denied pursuant to 28 ...