Winterer v. United States

FILED IN THE 2 U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON Sep 12, 2024 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON JARED ANTHONY WINTERER, NO: 2:24-CV-00195-RMP 8 Plaintiff, ORDER DENYING CONSTRUED 9 v. MOTION FOR REVISION, DENYING LEAVE TO PROCEED IN UNITED STATES, FORMA PAUPERIS AND DISMISSING CASE 11 Defendants.

13 By Order filed July 8, 2024, the Court directed pro se Plaintiff Jared Anthony Winterer, a prisoner currently housed at Washington Corrections Center in Shelton, Washington, to show cause why his application to proceed in forma pauperis should be granted in this case, ECF No. 9. In response, Plaintiff filed a document tiled “Reconsideration of strikes/IFP,” which the Court liberally will construe as a “Motion for Revision” under Fed. R. Civ. P. 54(b) of the Order to Show Cause, two documents titled “Motion to show cause/Amended Complaint,” and a third document titled “Clerk please scan this. Law Librarian was supposed to on 8-23-24 but didn’t and won’t by 9-6-24,” which the Court construes as Plaintiff’s Responses to the Order to Show Cause. ECF Nos. 10, 11, 12, and 13.

2 The first Response was received electronically on August 27, 2024, before the September 6, 2024 deadline. ECF No. 11. The other two Responses were received via the U.S. Postal Service on August 29, 2024, and September 3, 2024, respectively. ECF Nos. 12 and 13. The Court reminds Plaintiff that pursuant to General Order 16-35-1, participation in the E-Filing Program is mandatory for all prisoner litigants incarcerated at facilities participating in the Prison E-Filing Program, and that he should submit all future documents to be filed with this Court to the law librarian/designee for electronic filing. His expressed concern that his Response would not be electronically filed as he had instructed appears to be unfounded based on the Court’s receipt of his document on August 27, 2024. ECF No. 11. The Motion and all three Responses were considered without oral argument on the date signed below.

14 MOTION FOR REVISION 15 A non-final order in an action “may be revised at any time before the entry of judgment adjudicating all the claims and all the parties’ rights and liabilities.”

17 Fed. R. Civ. P. 54(b). Where reconsideration of a non-final order is sought, the court has “inherent jurisdiction to modify it, alter or revoke it.” United States v. 19 Martin, 226 F.3d 1042, 1049 (9th Cir. 2000); see Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514 15 (9th Cir. 2003) (noting that motions for reconsideration of non-final orders are not subject to the strict standards applicable to motions for reconsideration of final judgment).

3 In the construed Motion for Revision, Plaintiff invites this Court to “dismiss all the other cases but leave this one open.” ECF No. 10 at 1. He claims that he has “proven that I am entitled to the relief I want. Extraordinary circumstances obligate the district court.” Id. He further contends that “Federal courts took advantage of my legal disability to strike me out 28 USC 1915. That’s bad faith and not giving me a fourth strike would be too.” Id. 9 As noted in the Order to Show Cause, Plaintiff already has accumulated at least four “strikes” under 28 U.S.C. § 1915(g). ECF No. 9 at 3. His conclusory assertion of “extraordinary circumstances” is insufficient to overcome the preclusive effects of 28 U.S.C. § 1915(g). See Andrews v. Cervantes, 493 F.3d 13 1047, 1055–56 (9th Cir. 2007). The Court finds no basis to revise the Order to Show Cause. Therefore, the Motion for Revision, ECF No. 10, will be denied.

15 RESPONSES TO ORDER TO SHOW CAUSE 16 In all three of the construed Responses to the Order to Show Cause, Plaintiff repeats his assertions that he suffered a severe brain injury as a juvenile. See ECF Nos. 11, 12, and 13. He blames the State and the United States for his incrimination and punishment, claiming he was not properly treated for the brain injury in 2004, and he provides statistical information regarding Americans with brain injuries. Id. In each construed Response, Plaintiff states that he wants to be released to a hospital emergency room with “federal protection from the state of Washington and a check” for $100,000,000. Id. 3 Having reviewed Plaintiff’s submissions, the Court finds that he has failed to demonstrate that he is eligible to proceed in forma pauperis under 28 U.S.C. § 5 1915(g), or that he was under imminent danger of serious physical injury when he filed his complaint. See Andrews, 493 F.3d at 1055–56. Therefore, Plaintiff has lost the privilege of filing this lawsuit in forma pauperis. Because Plaintiff did not avail himself of the opportunity to pay the $405.00 filing fee, he may not proceed with this action.

10 Accordingly, IT IS HEREBY ORDERED: 11 1. Plaintiff’s construed Motion for Revision, ECF No. 10, is DENIED.

12 2. Plaintiff’s application to proceed in forma pauperis, ECF No. 4, is 13 DENIED.

14 3. This action is DISMISSED WITHOUT PREJUDICE for non- 15 payment of the filing fee as required by 28 U.S.C. § 1914.

16 4. The District Court Clerk shall CLOSE the file.

17 5. The Court certifies any appeal of this dismissal would not be taken in 18 good faith.

19 / / / / / / / / / 1 IT IS SO ORDERED. The District Court Clerk is directed to enter this Order, enter judgment, and provide copies to Plaintiff.

3 DATED September 12, 2024.

4 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON 5 Senior United States District Judge