Demos v. Rice

6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE JOHN ROBERT DEMOS, JR., CASE NO. C20-824 RSM 9 Plaintiff, ORDER ADOPTING REPORT AND RECOMMENDATION 10 v. 11 THOMAS O. RICE, et al., 12 Defendants.

14 This matter is before the Court on a Report and Recommendation (“R&R”) of the Honorable Brian A. Tsuchida, Chief United States Magistrate Judge. Dkt. #2. Plaintiff previously filed an application to proceed in forma pauperis and a proposed § 1983 prisoner civil rights complaint. Dkt. #1. Judge Tsuchida reviewed the filings and recommended that this Court deny the application and dismiss the action because Plaintiff cannot proceed in forma pauperis.

19 Dkt. #2. Specifically, the R&R notes that Plaintiff “has had more than three prior actions dismissed as frivolous, malicious, or for failure to state a claim, [and] may not proceed in forma pauperis unless he alleges that he is in ‘imminent danger of serious physical injury.’” Dkt. #2 at 2 (quoting 28 U.S.C. § 1915(g)). The R&R further notes that the allegations of Plaintiff’s proposed complaint lack detail such that they do not constitute “a plausible allegation that [he] faced imminent danger of serious physical injury at the time of filing.” Dkt. #2 at 2 (quoting Andrews v. Cervantes, 493 F.3d 1047 (9th Cir. 2007) (internal citations omitted)).

3 Plaintiff has not objected to the R&R and has instead filed a “Notice of Appeal.” Dkt.

4 #3. Plaintiff did so despite the R&R specifically indicating that it was “not an appealable order” and that Plaintiff should not seek review until a judgment was entered. Dkt. #2 at 2.

6 Nevertheless, Plaintiff filed an appeal that is docketed and pending before the Ninth Circuit Court of Appeals. Dkt. #4.

8 Upon docketing of an appeal, the district court no longer has jurisdiction over the matter.

9 See FED. R. APP. P. 42; Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (“[t]he filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control”); FED. R. CIV. P. 62.1.

12 However, Plaintiff’s notice of appeal contains substantive argument that the Court would otherwise construe as objections. To the extent the Ninth Circuit Court of Appeals determines that this Court is without jurisdiction to enter this Order, the Court requests that the Ninth Circuit Court of Appeals remands the matter for the limited purpose of entry of this Order and judgment in conformance therewith.

17 Plaintiff objects to the R&R on the basis that he, as a native American, is not a person subject to 28 U.S.C. § 1915(g). Dkt. #3. Plaintiff, relies on a wide range of unrelated statutes, treaties—both domestic and international—, and cases to create a nonsensical argument that individual native Americans sovereigns and not “persons.” Id. at 2–3. Plaintiff notes that § 1915(g) applies to “prisoners” and not “persons,” but does nothing to establish that he is not a “prisoner” subject to § 1915(g). As his sole allegation of imminent danger, Plaintiff notes that “the President of the U.S., Donald J. Trump, is telling people to ingest/drink Lysol disinfectant to combat COVID-19.” Id. at 3. Plaintiff appears to understand the clear danger of following this terrible advice and does not allege that he will be forced to ingest Lysol.

3 Accordingly, and having considered the Report and Recommendation, Plaintiff’s Notice of Appeal, and the remainder of the record, the Court finds and ORDERS: 5 1. The Court ADOPTS the Report and Recommendation (Dkt. #2).

6 2. Plaintiff’s application to proceed in forma pauperis (Dkt. #1) is DENIED.

7 3. This matter is DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(g) and 8 standing bar orders, see In re John Robert Demos, MC91-269-CRD (W.D. Wash. Jan.

9 16, 1992); In re Complaints and Petitions Submitted by John Robert Demos, (W.D. Wash. 10 Dec. 15, 1982) 11 4. This matter is CLOSED.

12 5. The Clerk is directed to send copies of this Order to Plaintiff, to Judge Tsuchida, and to 13 the Ninth Circuit Court of Appeals (re: Case No. 20-35541).

14 Dated this 13th day of July, 2020.

A RICARDO S. MARTINEZ 18 CHIEF UNITED STATES DISTRICT JUDGE