Opinion
NO: 4:16-CV-05010-SMJ
07-20-2016
TONY KIM WHITE, Plaintiff, v. JAMES KEY, LT. BUSS, SGT. ORTH, CUS MICHAEL A. RAINVILLE, SGT. BOLINGER, C/O JON S. CHRISTNER, C/O SAYWERS and BRENDA DESHAZER, Defendants.
ORDER DISMISSING COMPLAINT
1915(g)
Magistrate Judge Rodgers filed a Report and Recommendation on June 29, 2016, ECF No. 15, recommending Mr. White's Complaint be dismissed with prejudice for failure to state a claim upon which relief may be granted, and that such dismissal count as a "strike" under 28 U.S.C. § 1915(g). Plaintiff, who initiated this action while incarcerated at the Coyote Ridge Corrections Center, was subsequently released. He is proceeding pro se and in forma pauperis; Defendants have not been served.
Magistrate Judge Rodgers found that Plaintiff had failed to present facts from which the inference could be made that he suffered an "actual injury" to his access to the court. See Lewis v. Casey, 518 U.S. 343, 351-52 (1996). Furthermore, claims of the negligent deprivation of property failed to state a claim upon which relief may be granted. Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 544 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 328 (1986) (holding negligent loss of property is not actionable under the Due Process Clause).
There being no objections, the Court ADOPTS the Report and Recommendation. The Complaint, ECF No. 12 is DISMISSED WITH PREJUDICE under 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1).
Pursuant to 28 U.S.C. § 1915(g), enacted April 26, 1996, a prisoner who brings three or more civil actions or appeals which are dismissed as frivolous or for failure to state a claim will be precluded from bringing any other civil action or appeal in forma pauperis "unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). Plaintiff is advised to read the statutory provisions under 28 U.S.C. § 1915 . This dismissal of Plaintiff's complaint may count as one of the three dismissals allowed by 28 U.S.C. § 1915(g) and may adversely affect his ability to file future claims.
IT IS SO ORDERED. The District Court Executive is directed to enter this Order, enter Judgment, forward copies to Plaintiff at his last known address, and CLOSE the file. The District Court Executive is further directed to forward a copy of this Order to the Office of the Attorney General of Washington, Criminal Justice Division. 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 and would lack any arguable basis in law or fact.
DATED this 20th day of July 2016.
/s/_________
SALVADOR MENDOZA, JR.
United States District Judge