McDowell v. Haskell

1 FILED IN THE EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON 2 Mar 10, 2021 3 SEAN F. MCAVOY, CLERK

5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON ALAN RAY MCDOWELL, a.k.a.

ALAN RAY JOHNSON, NO: 2:20-CV-300-RMP Plaintiff, ORDER DISMISSING ACTION v. 1915(g) LARRY HASKELL, ROBERT FERGUSON and JUSTIN BINGHAM, Defendants.

14 By Order filed December 16, 2020, ECF No. 22, the Court reopened this case to allow Plaintiff Alan Ray McDowell to comply with the Order advising him of the deficiencies of his complaint and directing him to amend or voluntarily dismiss. ECF No. 14. The Court granted Plaintiff, a prisoner at the Spokane County Detention Services, until February 16, 2021, to amend or voluntarily dismiss and he did not do so. 20 Rather, on February 16, 2021, Plaintiff filed a document titled, “Motion & Order for Witness Protection for U.S. Treasury Audit.” ECF No. 26. This document is not sufficient as a First Amended Complaint, as it seeks protection for numerous individuals who are not parties in this action. See Johns v. Cty. of San Diego, 114 F.3d 874, 876–77 (9th Cir. 1997) (explaining that constitutional claims are personal and cannot be asserted vicariously, and that a non-attorney may appear pro se on his own behalf but has no authority to appear as an attorney for others).

8 Although granted the opportunity to do so, Plaintiff has failed to file a First Amended Complaint that states a claim upon which relief may be granted. He did not clearly and concisely present a claim that would entitle him to relief in this Court.

12 Accordingly, for the reasons set forth above and in the Order to Amend or Voluntarily Dismiss, ECF No. 14, IT IS ORDERED that this action is DISMISSED WITH PREJUDICE for failure to state a claim upon which relief may be granted under 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1).

16 Pursuant to 28 U.S.C. § 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 precluded from bringing any other civil action or appeal in forma pauperis “unless the prisoner is under imminent danger of serious physical injury.” 28 20 U.S.C. § 1915(g). Plaintiff is advised to read the statutory provisions of 28 21 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 in forma pauperis. IT IS FURTHER ORDERED that all pending motions are DENIED AS MOOT.

4 IT IS SO ORDERED. The District Court Clerk is directed to enter this Order, enter Judgment, provide copies to Plaintiff, and CLOSE the file. The District Court Clerk is further directed to provide a copy of this Order to the Office of the Attorney General of Washington, Corrections Division. The Court certifies that any appeal of this dismissal would not be taken in good faith.

9 DATED March 10, 2021.

11 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON 12 United States District Judge