Opinion
4:17-cv-05027-SAB
11-28-2017
OSSIE LEE SLAUGHTER, Plaintiff, v. DOUGLAS JONES, C/O VILLAREAL, RICHARD MORGAN, CHRISTINE BRULE, DIANE SANCHEZ, JEFFREY UTTECHT, MICHELLE DUNCAN, SHANE RIRIE, PA DELPH, D. SCANTLIN, JACKEY L. FLUIATT, JOSHUA CRUGER and MARK LEIGH, Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING LEAVE TO PROCEED IN FORMA PAUPERIS , DISMISSING ACTION AND DENYING ALL PENDING MOTIONS AS MOOT
BEFORE THE COURT is Magistrate Judge John R. Rodger's Report and Recommendation to deny Plaintiff leave to proceed in forma pauperis as precluded under 28 U.S.C. § 1915(g), to dismiss the action for failure to pay the filing fee under 28 U.S.C. § 1914, and to deny all pending motions. ECF No. 18. After being granted additional time, Plaintiff, a pro se prisoner at the Washington State Penitentiary filed timely Objections on October 27, 2017, ECF No. 22. He also filed a Motion for telephonic appearance, which he noted for hearing on November 27, 2017.
The Court has reviewed the record, including Plaintiff's Objections totaling 99 pages and is fully informed. Plaintiff was granted the opportunity to show cause why he should be allowed to proceed in forma pauperis in these proceedings under 28 U.S.C. § 1915(g), and failed to do so. He did not counter the Court's finding that three or more of his prior actions were dismissed as frivolous or malicious, or for failure to state a claim, ECF No. 13 at 2, although he now claims the Ninth Circuit erroneously dismissed Slaughter v. Sinclair. ECF No. 22 at 12.
The Honorable Lonny R. Suko dismissed Slaughter v. Sinclair, et al.2:11-cv-00430-LRS, with prejudice for failure to state a claim upon which relief may be granted on July 30, 2012, ECF No. 48. Plaintiff appealed that decision to the Ninth Circuit Court of Appeals, and on November 8, 2012, the Court of Appeals denied Mr. Slaughter's motion to proceed in forma pauperis because they also found his appeal to be frivolous in cause number 12-35686. The Mandate was issued on December 17, 2012, when the filing fee was not paid. Plaintiff presents no facts in support of his contention that the dismissal was erroneous.
Plaintiff asserts that he should be allowed to amend his complaint. ECF No. 22 at 2. He was granted the opportunity to present facts showing he was under imminent danger of serious physical injury when he lodged his complaint on March 20, 2017, ECF No. 13 at 4, and he did not do so. His assertions that he is continuously placed in the Intensive Management Unit, falsely infracted, denied legal supplies, and subjected to cell searches, ECF No. 22 at 12, do not make the requisite showing. Grievances, kites and disciplinary actions occurring in August, September and October 2017, ECF No. 22-1, have no relevance to whether Plaintiff was under imminent danger of serious physical injury in March 2017. Consequently, Plaintiff is precluded from proceeding in this action in forma pauperis under 28 U.S.C. § 1915(g). // //
Accordingly, IT IS HEREBY ORDERED:
1. For the reasons set forth by the Magistrate Judge, the Report and Recommendation, ECF No. 18, is ADOPTED IN ITS ENTIRETY.
2. Plaintiff's application to proceed in forma pauperis, ECF No. 2, is DENIED.
3. Although granted the opportunity to do so, Plaintiff did not pay the $400.00 fee ($350.00 filing fee, plus $50.00 administrative fee) to commence this action. Therefore, this action is DISMISSED for failure to comply with the filing fee requirements of 28 U.S.C. § 1914.
4. All pending motions are DENIED as moot.
5. The Court certifies any appeal of this dismissal would not be taken in good faith.
IT IS SO ORDERED. The Clerk of Court is directed to enter this Order, enter judgment, forward a copy to Plaintiff and close the file.
DATED this 28th day of November 2017.
/s/_________
Stanley A. Bastian
United States District Judge