Opinion
CASE NO. C18-1770-JCC
01-15-2019
JOHN ROBERT DEMOS, Plaintiff, v. STATE OF WASHINGTON DEPARTMENT OF CORRECTIONS, et al., Defendants.
ORDER
This matter comes before the Court on Plaintiff John Robert Demos' objections (Dkt. No. 3) to the report and recommendation (Dkt. No. 2) issued by the Honorable Brian A. Tsuchida, United States Magistrate Judge. Having reviewed Judge Tsuchida's report and recommendation, Plaintiff's objections, and the relevant record, the Court OVERRULES Plaintiff's objections and ADOPTS the report and recommendation for the reasons set forth herein.
Plaintiff is currently incarcerated at the Monroe Correctional Complex. (Dkt. No. 3 at 6.) Plaintiff, acting pro se, filed a 42 U.S.C. § 1983 claim against various correctional officers, officials, and the Washington Department of Corrections. (See Dkt. No. 1-1.) Plaintiff alleges that correctional officers used "rough and unnecessary force" to return him to his cell. (Id. at 2.) He also alleges that he is in "imminent danger, as I do not feel safe here in the IMU protective custody unit, as staff serve me my food, and my medications, staff could easily tamper with my food and medications before they get to me." (Id.)
Judge Tsuchida declined service of Plaintiff's complaint and recommends the complaint be dismissed without prejudice for failure to state a claim. (Dkt. No. 2 at 2.) Judge Tsuchida notes that because Plaintiff is a bar order litigant, he "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 a claim." (Id.) (citing 28 U.S.C. § 1915(g)). Plaintiff objects to Judge Tsuchida's report and recommendation. (Dkt. No. 3.)
A district court reviews objections to a magistrate judge's report and recommendation de novo. Fed. R. Civ. P. 72(b)(3). The district court may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Id. Pursuant to the Prisoner Litigation Reform Act:
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.28 U.S.C. § 1915(g). Plaintiff is subject to a bar order in this Court because he has had more than three actions dismissed as frivolous, malicious, or for failure to state a claim. See In re John Robert Demos, MC91-0269-CRD, Dkt. No. 1 (W.D. Wash. Jan. 16, 1992).
Plaintiff's complaint does not plausibly allege that he is in imminent danger of serious physical injury. Plaintiff's claim is based on correctional officers using "unnecessary force" to return him to his cell, and the possibility that prison staff could poison his food or medication. (See Dkt. No. 1-1 at 2-3.) These do not represent plausible allegation[s] that Plaintiff "faced imminent danger of serious physical injury at the time of filing." Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) ("[T]he availability of the exception turns on the conditions a prisoner faced at the time the complaint was filed, not at some earlier or later time."). Plaintiff's objections to Judge Tsuchida's report and recommendation fail to address the complaint's factual shortcomings. (See Dkt. No. 3.) Indeed, Plaintiff offers only conclusory assertions that he faces imminent danger of serious physical injury. (See Dkt. No. 3) ("Even though I am in protective custody, I am still in 'imminent danger,' as prison guards who work here in protective custody could do/accomplish the following . . . .").
For the reasons explained herein, the Court ORDERS as follows:
1. The Report and Recommendation (Dkt. No. 2) is ADOPTED;
2. Plaintiff's application to proceed in forma pauperis (Dkt. No. 1) is DENIED;
3. This matter is DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(g) and standing bar orders, see In re John Robert Demos, MC91-269-CRD, Dkt. No. 1 (W.D. Wash. Jan. 16, 1992); and
4. The Clerk shall send a copy of this order to Plaintiff and to Judge Tsuchida.
DATED this 15th day of January 2019.
/s/_________
John C. Coughenour
UNITED STATES DISTRICT JUDGE