Opinion
No. CV-05-263-AAM.
September 19, 2005
ORDER OF DISMISSAL
This action was transferred here from the Western District of Texas pursuant to 28 U.S.C. § 1404(a) (convenience of parties and witnesses and the interests of justice), although it is apparent that a transfer for improper venue pursuant to § 1406(a) would also have been appropriate. It is one of many actions the plaintiff has filed in various districts nationwide in an attempt to circumvent pre-filing review orders entered by the undersigned and now an order which prohibits plaintiff from filing anything in the Eastern District of Washington unless accompanied by the appropriate filing fee.
The transfer order (Ct. Rec. 4) was filed in the Western District of Texas on August 10. On August 9 in CV-05-211-AAM (Ct. Rec. 8), the undersigned entered an order barring the plaintiff from filing any further actions in the Eastern District of Washington without payment of the appropriate filing fee. The allegation in plaintiff's proposed "First Amended Verified Complaint" that he is under imminent danger of serious physical injury does not persuade this court to make an exception to its August 9 order requiring payment of the filing fee. In a bid to gain in forma pauperis (IFP) status and to gain additional review of allegations regarding foreign judgments and writs already found frivolous by this court, what the plaintiff has done in this action, and in other actions filed in districts other than the Eastern District of Washington, is include a conditions of confinement allegation. Proof enough of this is the allegation in the First Amended Verified Complaint (Paragraph 1.05) that: "Plaintiff is presently under imminent danger of serious physical injury, resulting directly from the defendant's acts of retaliation and retribution, as a result of and taken to interfere with the plaintiff's lawful acts of execution and enforcement of judgments." Furthermore, plaintiff's complaint does not name/identify Spokane County or any Spokane County Jail officials as defendants. The plaintiff simply wanted the Western District of Texas to reconsider his frivolous allegations regarding foreign judgments and writs, notwithstanding the fact it is obvious that the Western District of Texas has absolutely nothing to do with any of the plaintiff's claims.
Were this any other pro se prisoner plaintiff, this court might consider providing an opportunity to submit an amended complaint alleging only a conditions of confinement claim and if sufficient, grant IFP status. This, however, is not any other pro se prisoner plaintiff. Plaintiff's track record of abusing the court system is a lengthy one and clearly established. Accordingly, if plaintiff wants to assert a conditions of confinement claim, he will need to include that claim (and that claim only) in a complaint accompanied by the $250 filing fee.
Plaintiff will not be allowed to proceed IFP in the captioned matter. His Motion To Proceed IFP (Ct. Rec. 1) is DENIED and this action is DISMISSED with prejudice. Plaintiff will not be allowed to file anything further in the captioned matter with the exception of a "Notice of Appeal" to the Ninth Circuit Court of Appeals. This court certifies that any such appeal taken is not taken in good faith. 28 U.S.C. § 1915(a)(3) and Fed.R.App.P. 24(a)(3)(A). IT IS SO ORDERED. The District Executive shall enter judgment accordingly and forward a copy of the judgment and this order to plaintiff McNeil.