Humphreys v. Coyote Ridge Superintendent

FILED IN THE 2 U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON Jun 07, 2023 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON SCOTT W. HUMPHREYS, No. 4:23-cv-05052-RMP 8 Plaintiff, ORDER DENYING LEAVE TO 9 v. PROCEED IN FORMA PAUPERIS AND DISMISSING ACTION COYOTE RIDGE SUPERINTENDENT, DANUNNLE AMBRUSTER, LARLINE, DEAN BANKING, JESSICA TAVARES, RS WILLS, SERIOUS, A.A. SIMPSON, MAIL ROOM, MAIL ROOM RESOLUTIONIST, LEVI C. DEAN, REFER TO DIGITAL RECORDS, OPTOMERY SCCC, and COYOTE RIDGE, Defendants.

17 On May 1, 2023, the Court directed Plaintiff Scott W. Humphreys, a pro se prisoner at the Coyote Ridge Corrections Center, to show cause why the Court should grant his application to proceed in forma pauperis. ECF No. 9 at 4. In the alternative, Plaintiff could have paid the $402.00 filing fee. Id. 1 On May 31, 2023, Plaintiff filed a construed Response to the Order to Show Cause (“OSC”). ECF No. 10. After careful review of Plaintiff’s submission, the Court finds that Plaintiff has failed to demonstrate that he was under imminent danger of serious physical injury when he initiated this case, and is thus precluded under 28 U.S.C. § 1915(g) from proceeding in this action without prepayment of the filing fee. See O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008).

7 Plaintiff’s construed OSC Response is difficult to decipher. He does not appear to dispute the Court’s finding that he filed three or more actions while a prisoner that were dismissed as frivolous, malicious or for failure to state a claim upon which relief may be granted. See ECF No. 9 at 2–3. Further, he does not appear to assert that he was under “imminent danger of serious physical injury” when he filed his complaint on April 19, 2023. See 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055–56 (9th Cir. 2007); see also Ray v. Lara, 31 14 F.4th 692, 701 (9th Cir. 2022) (holding that “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.”).

17 Liberally construing his assertions in the light most favorable to Plaintiff, the Court finds that he has failed to overcome the preclusive effects of 28 U.S.C. § 19 1915(g). Because Plaintiff did not avail himself of the opportunity to pay the $402.00 filing fee, he may not proceed with this action.

1 Accordingly, IT IS HEREBY ORDERED: 2 1. Plaintiff’s application to proceed in forma pauperis, ECF No. 3, is 3 DENIED.

4 2. This action is DISMISSED WITHOUT PREJUDICE for non- 5 payment of the filing fee as required by 28 U.S.C. § 1914.

6 3. The District Court Clerk shall CLOSE the file.

7 4. The Court certifies that any appeal of this dismissal would not be 8 taken in good faith.

9 IT IS SO ORDERED. The District Court Clerk is directed to enter this Order, enter judgment, and provide copies to Plaintiff.

11 DATED June 7, 2023.

s/ Rosanna Malouf Peterson 13 ROSANNA MALOUF PETERSON Senior United States District Judge