Mullen v. Washington State DOC

FILED IN THE U.S. DISTRICT COURT 3 EASTERN DISTRICT OF WASHINGTON Oct 06, 2020 5 SEAN F. MCAVOY, CLERK 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON ADEN SEAN MULLEN, 4:20-CV-05069-SAB 11 Plaintiff, 12 v. ORDER DISMISSING WASHINGTON STATE DOC, COMPLAINT WASHINGTON STATE PENITENTIARY, DON HOLBROOK, THURSTON COUNTY SUPERIOR COURT, KELLY WALKER, R. RANDOLPH and COUNSELOR HILL, 19 Defendants.

21 By Order filed July 28, 2020, the Court advised Plaintiff of the deficiencies of his complaint and provided him with an opportunity to voluntarily dismiss within sixty (60) days. ECF No. 12. Plaintiff, a prisoner at the Washington State Penitentiary (“WSP”), is proceeding pro se and in forma pauperis; Defendants have not been served.

26 In the Order, the Court found that Plaintiff’s civil rights action is subject to dismissal as the relief Plaintiff seeks sounds in habeas. ECF No. 12 at 5. Although Dismiss and a separate Affidavit (or declaration under penalty of Perjury) and Motion to waive collection of the remaining balance of the filing fee. The Court had cautioned Plaintiff that the failure to file these documents within sixty (60) days of the date of the Order would result in the dismissal of this action and the continuing obligation to pay the full filing fee of $350.00. Id. at 5–6.

6 For the reasons set forth above and in the Order Granting Opportunity to Voluntarily Dismiss Complaint, ECF No. 12, the Complaint is subject to dismissal for failure to state a claim upon which relief may be granted. 28 U.S.C. §§ 9 1915(e)(2) and 1915A(b)(1).

10 Accordingly, IT IS HEREBY ORDERED: 11 1. The Complaint, ECF No. 1, is DISMISSED without prejudice for 12 failure to state a claim upon which relief may be granted. 28 U.S.C. §§ 13 1915(e)(2) and 1915A(b)(1).

14 2. Based on the Court’s reading of Washington v. Los Angeles Cty. Sheriff’s 15 Dep’t, 833 F.3d 1048 (9th Cir. 2016), this dismissal will NOT count as a 16 “strike” under 28 U.S.C. § 1915(g).

17 3. The Clerk’s Office is directed to ENTER JUDGMENT and CLOSE 18 this file.

19 // // // // // // // // // // 1 4. The Court certifies that any appeal of this dismissal would not be taken in good faith.

IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order an: provide copies of this Order and the Judgment to Plaintiff at his last known address.

DATED this 6th day of October 2020.

Schell Setar I Stanley A. Bastian | United States District Judge I I I I ANNDTD NICAITICCIRAIM FANRANT ATKTTCO;