Opinion
CASE NO. C20-175 RSM-BAT
02-05-2020
JOHN ROBERT DEMOS, Plaintiff, v. CLARENCE THOMAS, 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 proposed 42 U.S.C. § 1983 action, plaintiff alleges that six justices of the United States Supreme Court have violated his First Amendment right to access the courts by declining to accept his petitions for certiorari. Dkt. 1-1.
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" because he has "suffered mental, spiritual, psychological, + emotional trauma, as the vaunted U.S. Supreme Court has made me a pariah, an outcast, and a[n] orphan of the U.S. Constitution." Dkt. 1-1, at 10. The Court rejects plaintiff's assertion that the Supreme Court's pre-filing bar order suggests imminent danger of serious physical injury given his alleged harm is non-physical and because the Supreme Court's pre-filing bar order is now nearly 27 years old. Moreover, plaintiff has not demonstrated how or why the Western District of Washington has the jurisdiction and authority to enjoin the Supreme Court or overturn its decision that plaintiff is barred from filing petitions for certiorari unless he pays a filing fee because of his history of abusive filing practices. See Demos, 507 U.S. at 290-91.
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 no later than February 26, 2020. The Clerk should note the matter for February 28, 2020, as ready for the District Judge's consideration. Objections shall not exceed five (5) pages. The failure to timely object may affect the right to appeal.
DATED this 5th day of February, 2020.
/s/_________
BRIAN A. TSUCHIDA
Chief United States Magistrate Judge