Demos v. Washington State Department of Corrections

UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE JOHN ROBERT DEMOS, JR., Cause No. C22-0724RSL Plaintiff, ORDER OF DISMISSAL v. THE WASHINGTON STATE DEPARTMENT OF CORRECTIONS, et al., Defendants.

This matter comes before the Court on the Report and Recommendation of the Honorable Michelle L. Peterson, United States Magistrate Judge, and the objections thereto. Having reviewed the papers and the remainder of the record, the Court finds as follows: As a bar order litigant, plaintiff may submit only three in forma pauperis applications and proposed actions each year. See In re John Robert Demos, MC91-269-CRD (W.D. Wash. Jan.

21 16, 1992); In re Complaints and Petitions Submitted by John Robert Demos (W.D. Wash. Dec. 15, 1982). Because plaintiff has had more than three prior actions filed and dismissed this year, he may not proceed in forma pauperis unless he makes a plausible allegation that he faced imminent danger of serious physical injury at the time of filing under 28 U.S.C. § 1915(g). See Andrews v. Cervantes, 493 F.3d 1047 (9th Cir. 2007).

1 Plaintiff alleges that he has contracted COVID-19 twice while in custody, that the virus is “raging out of control” in the facility, and that “repeated episodes of staff negligence in responding to, and treating COVID-19, could lead to plaintiff’s untimely death.” Dkt. # 1-1 at 4.

5 The Court assumes, for purposes of this analysis, that plaintiff has plausibly alleged “imminent danger of serious physical injury.” Nevertheless, this action cannot proceed under 28 U.S.C. § 1915(e)(2) because it is frivolous and fails to state a claim upon which relief may be granted.

9 Plaintiff has not filed a complaint but rather a motion to intervene in an entirely separate lawsuit pending in an unknown jurisdiction. The relief he seeks cannot be granted in this action, and the filing of this separate lawsuit was legally and procedurally frivolous.

For all of the foregoing reasons, this matter is DISMISSED without prejudice to the filing of a motion to intervene in the class action lawsuit referenced in Dkt. # 1-1.

Dated this 19th day of July, 2022.

22 Robert S. Lasnik United States District Judge