Because that has not yet happened, the dismissal currently counts as a strike for purposes of determining whether Kurtenbach is eligible to proceed IFP in this case.
The District of South Dakota’s dismissal for failure to state a claim on which relief may be granted constitutes a strike until such time that the dismissal is reversed or vacated on appeal. 9, 2019) (recognizing Campbell to have been abrogated by Coleman). The cases cited by Kurtenbach to the contrary in his response predate Coleman and are no longer good law following Coleman. Unfortunately for Kurtenbach, however, the Supreme Court of the United States has since that time reached the opposite conclusion, holding that “courts must count the dismissal even though it remains pending on appeal.” Coleman v. Kurtenbach cites to a handful of cases from around the country, including a decision of the Eighth Circuit, for the proposition that a dismissal does not result in a strike under § 1915(g) until the appellate process for that dismissal has fully concluded.
Kurtenbach argues in his response to the order to show cause that because the appeal from that dismissal remained pending before the United States Court of Appeals for the Eighth Circuit at the time this 2 lawsuit was filed, 1 the South Dakota dismissal cannot be regarded as a strike. § 1915A(b), the District of South Dakota dismissed the action for failure to state a claim upon which relief may be granted. On preservice review of the complaint under 28 U.S.C.
3:21-CV-3003 (District of South Dakota) In February 2021, Kurtenbach brought claims under the Electronic Communications Privacy Act against Reliance Telephone Services (the defendant in this action) and Hughes County, South Dakota, in the United States District Court for the District of South Dakota. And because Kurtenbach has struck out of federal court, his IFP application must be denied. The Court rejects each of Kurtenbach’s arguments with respect to each of the three dismissals and finds, for the reasons provided below, that each of those dismissals is a strike under § 1915(g). In that response, Kurtenbach contends that none of the three dismissals identified by this Court amounts to a strike under § 1915(g). Kurtenbach has now responded to this Court’s order to show cause. 1 Accordingly, Kurtenbach was ordered to show cause why his IFP application should not be denied pursuant to § 1915(g). As this Court noted in the November 2 order, Kurtenbach appeared to have been subject to three such dismissals while acting as a prisoner-litigant. 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. Under that provision, n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding. In an order dated November 2, 2021, this Court noted that Kurtenbach appeared to be ineligible for IFP status due to having accrued three “strikes” under 28 U.S.C. Plaintiff Matthew Kurtenbach, a prisoner, applied for in forma pauperis (“IFP”) status in this matter. ORDER Reliance Telephone Services, Defendant. 21-cv-2376 (DSD/TNL) Matthew Kurtenbach, Plaintiff, v. 5 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Case No.