Opinion
C23-5156-TSZ
03-03-2023
REPORT AND RECOMMENDATION
BRIAN A. TSUCHIDA, UNITED STATES MAGISTRATE JUDGE
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 proposed action, plaintiff alleges that his constitutional rights have been violated in three ways: (1) Magistrate Judge Theresa Fricke, District Judge Tana Lin, and the Clerk of the Western District transferred his case to the Eastern District of Washington because doing so was tantamount to a summary dismissal; (2) Chief Justice of the Washington State Supreme Court Chief Justice Debra Stephens and Clerk of the Washington State Supreme Court Erin Lennon impermissibly enforced a bar order regarding his filing of lawsuits; and (3) Judge Lin and the Clerk of the Western District are “accomplices” in the future harm that plaintiff will suffer due to the dismissal of his lawsuit in the Eastern District as he continues to suffer the adverse prison condition of which he complained in the dismissed lawsuit. Dkt. 1-1, at 5-9. Plaintiff seeks $3 million in damages. Id. At 10.
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. Plaintiffs 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 in no way connects the defendants to imminent physical harm and does not allege with any specificity the kind of harm he has suffered in prison, omitting any dates, places, or individuals involved. More importantly, defendants in this matter-all judges or nonjudicial officers performing acts related to the judicial process-are afforded absolute or quasi-judicial immunity for plaintiffs complaints that his lawsuit should not have been transferred out-ofdistrict and no vexatious litigant order should have been enforced against him. See Forrester v. White, 484 U.S. 219, 225 (1988); In re Castillo, 297 F.3d 940, 947 (9th Cir. 2002). Plaintiffs proposed complaint is therefore frivolous.
The Court recommends DENYING plaintiff IFP status and DISMISSING the proposed complaint, Dkt. 1, with prejudice in accordance with 28 U.S.C. § 1915(e)(2)(B) & (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.
The Clerk should note the matter for March 3, 2023, as ready for the District Judge's immediate consideration.