Opinion
CASE NO. C18-1770 JCC-BAT
12-18-2018
JOHN ROBERT DEMOS, Plaintiff, v. STATE OF WASHINGTON DEPARTMENT OF CORRECTIONS, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff is well-known locally and nationally as an abusive litigant. He is under pre-filing bar orders in a number of courts, including this Court, the Eastern District of Washington, the Washington State courts, the Ninth Circuit Court of Appeals, and the United States Supreme Court. See, e.g., Demos v. Storrie, 507 U.S. 290, 291 (1993). In the current action, plaintiff attempts to bring a § 1983 action against correctional officers at Monroe Correctional Complex for allegedly using excessive force to move him to his cell. Dkts. 1, 1-1.
In the alternative, plaintiff brings this matter as a habeas petition. He has stated no grounds for habeas relief. Moreover, an Order of this Court provides for the summary dismissal of any petition by plaintiff that seeks an extraordinary writ pursuant to 28 U.S.C. §§ 1651, 2253 or 2254, unless accompanied by the filing fee. See Demos v. Stanley, MC97-0031-JLW (W.D. Wash. Mar. 13, 1997); see also Demos v. U.S. Dist. Court for Eastern Dist. of Washington, 925 F.2d 1160 (9th Cir. 1991) (barring plaintiff's petitions seeking extraordinary writs pursuant to 28 U.S.C. §§ 1651, 2253, or 2254 directed at the United States District Courts for the Eastern and Western Districts of Washington unless accompanied by a filing fee). --------
As a bar order litigant, plaintiff may submit only three IFP applications and proposed actions each year. See In re John Robert Demos, MC91-269-CRD (W.D. Wash. Jan. 16, 1992); In re Complaints and Petitions Submitted by John Robert Demos (W.D. Wash. Dec. 15, 1982). Furthermore, under 28 U.S.C. § 1915(g), plaintiff must demonstrate "imminent danger of serious physical injury" to proceed IFP because he has had numerous prior actions dismissed as frivolous, malicious, or for failure to state claim. See Demos v. Lehman, MC99-113-JLW (W.D. Wash. Aug. 23, 1999).
Plaintiff may not proceed with this action. Because plaintiff has had more than three prior actions dismissed as frivolous, malicious, or for failure to state a claim, he may not proceed in formal pauperis unless he alleges that he is in "imminent danger of serious physical injury." 28 U.S.C. § 1915(g); Demos, MC99-113-JLW. Plaintiff's proposed complaint does not contain "a plausible allegation that [he] faced imminent danger of serious physical injury at the time of filing." Andrews v. Cervantes, 493 F.3d 1047 (9th Cir. 2007) (internal citations omitted). Plaintiff alleges "imminent harm" based entirely on the fact that he is currently imprisoned and therefore could possibly be harmed via his food or medications. Dkt. 1-1, at 2.
The Court recommends DENYING plaintiff's IFP application, Dkt. 1, and DISMISSING the proposed complaint, Dkt. 1-1, without prejudice in accordance with 28 U.S.C. § 1915(g) and standing bar orders. See In re John Robert Demos, MC91-269-CRD (W.D. Wash. Jan. 16, 1992); In re Complaints and Petitions Submitted by John Robert Demos (W.D. Wash. Dec. 15, 1982). A proposed Order is attached.
OBJECTIONS AND APPEAL
This Report and Recommendation is not an appealable order. Therefore a notice of appeal seeking review in the Court of Appeals for the Ninth Circuit should not be filed until the assigned District Judge enters a judgment in the case.
Objections, however, may be filed and served upon all parties no later than January 8, 2019. The Clerk should note the matter for January 11, 2019, as ready for the District Judge's consideration. Objections and responses shall not exceed five (5) pages. The failure to timely object may affect the right to appeal.
DATED this 18th day of December, 2018
/s/_________
BRIAN A. TSUCHIDA
Chief United States Magistrate Judge