CASE NO. C18-1151 RSM-BAT
REPORT AND RECOMMENDATION
Bar-order litigant John Demos has applied for leave to proceed in forma pauperis ("IFP") with a proposed civil-rights complaint. Dkts. 1, 1-1. Although plaintiff challenges the conditions of his confinement at the Washington State Penitentiary in Walla Walla, Washington, he sues defendants all purportedly located within the Western District of Washington: the governor, the state attorney general, and the Washington Department of Corrections officials responsible for housing him in a "close" custody facility and controlling his release. Dkt. 1-1, at 3. Thus, rather than transfer this case to the Eastern District of Washington, the Court addresses his substantive claims
As a bar order litigant, plaintiff may submit only three IFP applications and proposed actions each year. See In re John Robert Demos, MC91-269-CRD (W.D. Wash. Jan. 16, 1992); In re Complaints and Petitions Submitted by John Robert Demos (W.D. Wash. Dec. 15, 1982). Furthermore, under 28 U.S.C. § 1915(g), plaintiff must demonstrate "imminent danger of serious physical injury" to proceed IFP because he has had numerous prior actions dismissed as frivolous, malicious, or for failure to state claim. See Demos v. Lehman, MC99-113-JLW (W.D. Wash. Aug. 23, 1999).
This case appears to be plaintiff's first IFP application and proposed action for 2018. Mr. Demos's proposed complaint contains neither a claim upon which relief may be granted nor "a plausible allegation that the prisoner faced imminent danger of serious physical injury at the time of filing." Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) (internal citations omitted). Plaintiff alleges that because he is a protective-custody offender, defendants have violated his constitutional rights by housing him in "close" custody with mental-health offenders instead of in minimum security. Dkt. 1-1, at 3. Plaintiff seeks damages and a change to confinement policy so that mental-health offenders and protective-custody offenders are never housed in the same facility. Id. at 4. He refers in general to the possibility of mental-health offenders harming protective-custody offenders (and vice versa) but cites no specific incidents or dates involving him. Id. at 3-4. Although plaintiff cites the Equal Protection Clause, he does not describe how his status as a protective-custody offenders means that he belongs to a protected class. Id. at 3.
The Court recommends DENYING plaintiff's IFP application, Dkt. 1, and DISMISSING the proposed complaint, Dkt. 1-1, without prejudice in accordance with standing bar orders and for failure to state a claim upon which relief may be granted. See In re John Robert Demos, MC91-269-CRD (W.D. Wash. Jan. 16, 1992); In re Complaints and Petitions Submitted by John Robert Demos (W.D. Wash. Dec. 15, 1982); 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). This dismissal should also count as a STRIKE under 28 U.S.C. § 1915(g). The Court also recommends DENYING plaintiff's motion for appointment of counsel, Dkt. 1-1, at 4, as moot and unjustified. A proposed Order is attached.
OBJECTIONS AND APPEAL
This Report and Recommendation is not an appealable order. Therefore a notice of appeal seeking review in the Court of Appeals for the Ninth Circuit should not be filed until the assigned District Judge enters a judgment in the case.
Objections, however, may be filed and served upon all parties no later than August 30, 2018. The Clerk should note the matter for August 31, 2018, as ready for the District Judge's consideration. Objections and responses shall not exceed five (5) pages. The failure to timely object may affect the right to appeal.
DATED this 9th day of August, 2018
BRIAN A. TSUCHIDA
Chief United States Magistrate Judge