Opinion
2:23-cv-05143-SAB
12-27-2023
ROBERT JESSE HILL, Plaintiff, v. TODD WISE, JON COERS, AARON KERSHAW, SGT. WALKER, C.U.S. ANN ADAMS, SGT. PARSONS, TRACY BULL, OFFICER BITTERMAN, SGT. R. CURRY, ALFREDO LOMELI, STEVEN SUNDBERG, JR., ROBERT JACKSON, II, SGT. PATRICK MCPHERSON, OFFICER COTTOM, OFFICER SEVERSON, OFFICER ELLIOTT, OFFICER COLTON NORDYKE, DEAN MASON, MICHAEL DOUGLAS, DONALD HOLBROOKE, JR., CHERYL STRANGE, OFFICER CLARISSA RODRIGUES, TRACY SCHNEIDER, JANET NELSON, SGT. R. CROWELL, TONY DUNNINGTON, and JEFFERY ALFRED UTTECHT, Defendants.
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS AND DISMISSING ACTION
Stanley A. Bastian Chief United States District Judge
By Order filed November 29, 2023, the Court directed Plaintiff, a pro se prisoner at the Washington State Penitentiary, to show cause why his application to proceed in forma pauperis should be granted, ECF No. 10. In the alternative, Plaintiff was instructed that he could pay the $402.00 fee ($350.00 statutory filing fee, plus $52.00 administrative fee) to commence this action under 28 U.S.C. § 1914.
In response, Plaintiff filed a second supplemental affidavit in support of his Motion for Temporary Restraining Order, ECF No. 11, and a “Request for Judicial Notice,” ECF No. 12. Plaintiff complains that Defendant Wise threatened to confiscate Plaintiff's legal papers on November 13, 2023, if those papers were not properly labeled. ECF No. 11 at 1. Plaintiff contends that this is selective enforcement of a DOC policy. Id.
Plaintiff also asks this Court to take judicial notice that he filed two “Notices of Non-Frivolousness” in two Western District cases previously cited by this Court, and that two orders from the Ninth Circuit show “non-frivolousness.” ECF No. 12 at 1.
As previously noted by the Court, the accumulation of three prior qualifying dismissals under § 1915(g) precludes a prisoner from filing an additional suit in forma pauperis, even while his appeal of the dismissal is pending. See Coleman v. Tollefson, 575 U.S. 532, 541 (2015). Plaintiff does not dispute that district courts have dismissed three or more of his cases on the grounds enumerated in 28 U.S.C. § 1915(g), regardless of his subsequent appellate activity. See Hill v. Fisch et al., No. 3:22-cv-05320-RSM (W.D. Wash. June 14, 2022) (Order adopting Report and Recommendation to dismiss complaint with prejudice as untimely and for failure to state a claim for relief and without leave to amend) (Appeal No. 22-35823 reinstated and pending - consolidated with Appeal No. 22-35822); Hill v. Garrison et al., No. 3:22-cv-05451-RSM (W.D. Wash. Sept. 7, 2022) (Order adopting Report and Recommendation to dismiss complaint with prejudice as untimely and without leave to amend) (Appeal No. 22-35822 pending); Hill v. Nichols et al., No. 2:23-cv-00011-SAB (E.D. Wash. Aug. 29, 2023)(dismissed with prejudice as frivolous and for failure to state a claim upon which relief may be granted) (Appeal No. 23-3203 pending). Plaintiff does not dispute that a dismissal based upon statute of limitations constitutes a “strike.” See Belanus v. Clark, 796 F.3d 1021, 1023 (9th Cir. 2015).
After careful review of Plaintiff's submissions, the Court finds that Plaintiff has failed to demonstrate that he was under imminent danger of serious physical injury when he initiated this case and is thus precluded under 28 U.S.C. § 1915(g) from proceeding in this action without prepayment of the filing fee. See O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). Liberally construing Plaintiff's assertions in the light most favorable to him, the Court finds that he was failed to overcome the preclusive effects of 28 U.S.C. § 1915(g). See Andrews v. Cervantes, 493 F.3d 1047, 1055-56 (9th Cir. 2007) (discussing imminent danger exception to three-strikes rule).
Because Plaintiff did not avail himself of the opportunity to pay the $402.00 filing fee, he may not proceed with this action.
Therefore, IT IS HEREBY ORDERED:
1. Plaintiff's applications to proceed in forma pauperis, ECF Nos. 2 and
5, are DENIED.
2. This action is DISMISSED for failure to comply with the filing fee requirements of 28 U.S.C. § 1914.
3. All pending motions are DENIED as moot and all hearings and
deadlines shall be terminated.
4. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal of this Order would not be taken in good faith.
IT IS SO ORDERED. The Clerk of Court is directed to enter this Order, enter judgment, provide copies to Plaintiff, and CLOSE the file.