Cunningham v. Pend Oreille County Sheriffs Department

FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 May 31, 2023 3 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON AARON JOSEPH CUNNINGHAM, No. 2:23-cv-00075-MKD 8 Plaintiff, ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS 9 v. AND DISMISSING ACTION PEND OREILLE COUNTY SHERIFFS DEPARTMENT and NEWPORT TOW COMPANY, 12 Defendants.

14 By Order filed April 26, 2023, the Court directed Plaintiff Aaron Joseph Cunningham, a pro se federal pretrial detainee, to show cause under 28 U.S.C. § 16 1915(g) why he should be allowed to proceed in forma pauperis in this action.

17 ECF No. 5. The Court gave Plaintiff thirty days to comply with the Order and cautioned Plaintiff that his failure to show cause or pay the $402.00 filing fee would be construed as his consent to the dismissal of this action without prejudice for failure to comply with the filing fee requirements of 28 U.S.C. § 1914.

1 Plaintiff is currently incarcerated at the Kittitas County Corrections Center in Ellensburg, Washington. Plaintiff did not respond to the Order and has filed nothing further in this action.

4 Plaintiff does not challenge the Court’s conclusion that he has at least three qualifying dismissals under 28 U.S.C. § 1915(g). See ECF No. 5 at 2-3. He has failed to demonstrate that he was under imminent danger of serious physical injury at the time he filed his civil rights complaint on March 17, 2023. See Ray v. Lara, 31 F.4th 692, 695 (9th Cir. 2022) (“the imminent danger exception to the PLRA three-strikes provision requires a nexus between the alleged imminent danger and the violations of law alleged in the complaint.”). The Court finds that Plaintiff has failed to overcome the preclusive effects of 28 U.S.C. § 1915(g). Although granted the opportunity to do so, Plaintiff did not pay the $402.00 filing fee to commence this action.

14 Accordingly, IT IS ORDERED: 15 1. Plaintiff’s application to proceed in forma pauperis, ECF No. 3, is DENIED.

17 2. This action is DISMISSED WITHOUT PREJUDICE for failure to comply with 28 U.S.C. § 1914(a).

19 3. The Court certifies that any appeal of this Order would not be taken in good faith and would lack any arguable basis in law or fact.

1 4. The Clerk’s Office is directed to enter this Order, enter judgment, provide copies to Plaintiff at his last known address, and CLOSE the file.

3 DATED May 31, 2023.

s/Mary K. Dimke 5 MARY K. DIMKE UNITED STATES DISTRICT JUDGE