Opinion
CASE NO. 3:20-cv-05965-MJP-BAT
11-06-2020
FRASER MCDONOUGH ROTCHFORD , Plaintiff, v. JEFFERSON COUNTY et al., Defendant.
REPORT AND RECOMMENDATION
Plaintiff Fraser McDonough Rotchford is a prisoner detained at the Washington State Penitentiary at Walla Walla. On September 25, 2020, he submitted for filing a civil rights complaint under 42 U.S.C § 1983 without paying the filing fee or submitting an application to proceed in forma pauperis. Dkt. 1. The Court recommends petitioner's complaint be dismissed based upon the three-strikes rule of 28 U.S.C. § 1915(g), that petitioner be directed to pay the filing fee if the recommendation is adopted, and that if he does not pay the filing fee is paid, the matter be dismissed without prejudice.
DISCUSSION
Under § 1915(g), 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 barred 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). The Court's records reflect that more than three cases plaintiff filed while incarcerated as a prisoner were dismissed for failure to state a claim upon which relief may be granted. These include:
1. Rotchford v. Johnson & Johnson, 3:19-cv-5104-RBL, judgment entered June 13, 2019 adopting report and recommendation dismissing case for failure to state a claim.
2. Rotchford v. Coulter, 3:19-cv-5024-BHS, judgment entered June 28, 2019 adopting report and recommendation dismissing case for failing to state a claim upon which relief may be granted.
4. Rotchford v. Department of Corrections, 3:19-cv-5023-RJB, judgment entered July 2, 2019 adopting report and recommendation dismissing case for failure to state a claim and failure to prosecute.
5. Rotchford v. Jefferson County, 3:19-cv-5025-RBL, judgment entered July 2, 2019 adopting report and recommendation dismissing case for failure to state a claim and failure to prosecute.
6. Rotchford v. Peninsula Regional Network Ombudsmen, 3:19-cv-5139-RJB, judgment entered July 9, 2019 adopting report and recommendation dismissing case for failure to state a claim and failure to prosecute.
Because petitioner has pursued more than three civil actions which were dismissed for failure to state a claim upon which relief may be granted, he may not proceed with this complaint without prepayment of the full filing fee, absent a showing that he was "under imminent danger of serious physical injury," at the time he signed his civil rights complaint on October 3, 2016. See 28 U.S.C. § 1915(g).
Petitioner's present complaint fails to establish he is under imminent danger of serious physical injury. The complaint alleges violations related to the manner in which his criminal charges were handled several years ago. These allegations relate to past matters and thus fail to establish petitioner is under imminent danger of serious physical injury.
CONCLUSION
Plaintiff has not applied to proceed in forma pauperis or paid the filing fee as directed by the clerk of the court. Dkt. 1 and 2. The case should be dismissed for that reason alone. In the event plaintiff submits an application to proceed in forma pauperis after issuance of this report and recommendation, the application should be DENIED based on the three-strikes rule, 28 U.S.C. 1915(g), and petitioner should be directed to pay the filing fee within 14 days of adoption of this recommendation. If petitioner fails to pay the filing fee by that date, the matter should be dismissed without prejudice.
A proposed order accompanies this Report and Recommendation. Any objections to this Recommendation must be filed by November 20, 2020. The Clerk should note the matter for November 20, 2020, as ready for the District Judge's consideration. Objections are limited to 8 pages. This Report and Recommendation is not an appealable order. Therefore plaintiff shall not file a notice of appeal seeking review in the Court of Appeals for the Ninth Circuit until the assigned District Judge enters a judgment in the case. The failure to timely object may affect the right to appeal.
DATED this 6th day of November, 2020.
/s/_________
BRIAN A. TSUCHIDA
Chief United States Magistrate Judge