James Wilbourn v. SD State Penitentiary , 218 F. App'x 552 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-4095
___________
James Michael Wilbourn, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
South Dakota State Penitentiary; J. P. * District of South Dakota.
Syverson, head nurse, in her individual *
and official capacity; Rose Garrison, * [UNPUBLISHED]
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. *
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Submitted: February 21, 2007
Filed: March 14, 2007
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Before RILEY, COLLOTON, and GRUENDER, Circuit Judges.
PER CURIAM.
South Dakota inmate James Wilbourn appeals the district court’s1 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., No. 00-2551, 2000 WL 1665076, *1 (8th Cir.
Nov. 7, 2000) (unpublished per curiam) (affirming district court’s “three strikes”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
Wilbourn’s pending motions are denied as moot. See 8th Cir. R. 47A(a).
______________________________
1
The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.
2
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.
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