United States District Court, W.D. Washington, Tacoma
April 21, 2014
CULLEN M. HANKERSON, Plaintiff,
BERNIE WARNER, et al., Defendants.
ORDER ON REPORT AND RECOMMENDATION AND VARIOUS OTHER MOTIONS
ROBERT J. BRYAN, District Judge.
This matter comes before the Court on the Report and Recommendation of U.S. Magistrate Judge J. Richard Creatura (Dkt. 4), Plaintiff's "Motion to Present a Statement of Finances and Request an Order" (Dkt. 5), Plaintiff's "Motion to Present Evidence for In Forma Pauperis" (Dkt. 6), and Plaintiff's "Motion to Object to Report and Recommendation and Request to Now Requse [sic] Magistrate Judge" (Dkt. 7). The Court has reviewed all pleadings filed regarding the motions and the remaining file.
On March 20, 2014, Plaintiff filed this case, pro se, and included an application to proceed in forma pauperis. Dkt. 1. Plaintiff, in part, challenges Defendants' handling of his personal property, legal mail, access to his legal materials, custody level, and housing. Dkt. 1. Plaintiff asserts claims under 28 U.S.C. § 1983 for violations of his 14th and 1st Amendment rights. Dkt. 1. He makes a "failure to train" claim, claims based on violations of various Department of Corrections policies, claims under R.I.C.O., for criminal profiteering, for mail fraud, and for violation of 18 U.S.C. § 1341. Id. He also asserts a claim for retaliation. Id.
On March 24, 2014, the pending Report and Recommendation was filed recommending that Plaintiff's application to proceed in forma pauperis be denied because he has, on three or more occasions, filed either actions or appeals that the courts have deemed frivolous or have failed to state a claim. Dkt. 4. Denial of the in forma pauperis application was also recommended because Plaintiff was less than truthful regarding the number of prior cases he has filed. Id. The Report and Recommendation further recommends giving Plaintiff thirty days to pay the full filing fee of $400 or have the action dismissed. Id.
In his Motion to Present a Statement of Finances (Dkt. 5) and Motion to Present Evidence for In Forma Pauperis (Dkt. 6), Plaintiff files copies of his prison trust account statements and asks that the Court consider his inability to pay the filing fee.
Plaintiff also files objections to the Report and Recommendation, arguing that he "just forgot" about some of the prior filings, he has not received a "third strike in his filing of in forma pauperis, " the magistrate judge is biased, and some of the cases were brought to the federal court by an action of a notice of removal by defendants and not Plaintiff. Dkt. 7.
The Report and Recommendation should be adopted. Dkt. 4. As stated in the Report and Recommendation, Plaintiff has had at least three actions dismissed as frivolous or for failure to state a claim. Id. Further, he has not made any allegations in his proposed complaint that he was "under imminent danger of serious physical injury." 28 U.S.C. § 1915. Plaintiff's objections are without merit and do not provide a basis to reject the Report and Recommendation. Plaintiff should be given 30 days to pay the full filing fee of $400. If Plaintiff fails to pay the $400 filing fee within the required time, the case should be dismissed.
Plaintiff's pending motions (Dkts. 5 and 6) should be denied. His motions fail to address the proper issues to be considered in his particular application to proceed in forma pauperis. Further, he has failed to allege a legitimate basis for the magistrate judge's recusal.
It is ORDERED that:
1) The Report and Recommendation (Dkt. 4) IS ADOPTED;
Plaintiff has 30 days to pay the full filing fee of $400;
If Plaintiff fails to pay the filing fee within the required time, the case will be dismissed;
2) Plaintiff's "Motion to Present a Statement of Finances and Request an Order" (Dkt. 5) IS DENIED; and
3) Plaintiff's "Motion to Present Evidence for In Forma Pauperis" (Dkt. 6) IS DENIED.
The Clerk is directed to send uncertified copies of this Order to U.S. Magistrate Judge J. Richard Creatura, all counsel of record, and to any party appearing pro se at said party's last known address.