United States District Court, W.D. Washington, Seattle
THOMAS W.S. RICHEY, Plaintiff,
RJ STARKS, et al., Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Report and
Recommendation (“R&R”) of the Honorable
Michelle L. Peterson, United States Magistrate Judge. Dkt.
#5. The R&R recommends denial of Plaintiff's motion
to proceed in forma pauperis (“IFP”) on
his prisoner civil rights complaint under 42 U.S.C. §
1983. Plaintiff has filed Objections. Dkt. #6. After
considering the R&R, Plaintiff's Objections, and the
remainder of the record, the Court finds that Plaintiff's
motion to proceed IFP, Dkt. #4, should be DENIED. His request
to proceed anonymously, Dkt. #4-4, shall be considered if and
when he submits the filing fee.
is a pro se litigant currently imprisoned at the
Washington Corrections Center. Because of his litigation
history before this Court, Plaintiff is subject to the Prison
Litigation Reform Act (“PLRA”)'s
“three-strikes” rule. The
“three-strikes” rule prohibits a prisoner from
filing an action IFP “if he has accumulated more than
three ‘strikes' for prior federal-court actions
while incarcerated or in detention, unless he is ‘under
imminent danger of serious physical injury.'”
Washington v. L.A. Cnty. Sheriff's Dep't,
833 F.2d 1048, 1052 (9th Cir. 2016) (quoting 28 U.S.C. §
1915(g)). A prisoner incurs a strike if he brings an action
that was dismissed under Section 1915(e)(2) as frivolous,
malicious, or fails to state a claim upon which relief may be
granted. Id. (quoting 28 U.S.C. § 1915(g)).
Plaintiff's “strikes” are fully set forth in
detail in the R&R. Dkt. #5 at 2.
September 9, 2019, Plaintiff filed an application in this
Court to proceed IFP on a Section 1983 prisoner civil rights
complaint. Dkt. #1. Plaintiff claims that in or around August
2018, while incarcerated at Monroe Correctional Complex
(“MCC”), he was coerced into working as an
informant for Defendant Starks, the Intelligence and
Investigation Officer at the prison. Dkt. #1-1 at ¶ 6.
He allegedly worked as an informant from August 2018 until
February or March 2019, when Plaintiff decided he no longer
wanted to work as an informant. Id. at ¶¶
7-10. In July and August 2019, Plaintiff alleges that he
“was interviewed regarding my whistleblowing reports of
being threatened, exploited, and corrupted” by
Defendants. Id. at ¶¶ 14-15. Plaintiff
claims that Defendants pushed to transfer him to the Airway
Heights Corrections Center (“AHCC”) out of
retaliation for his whistleblowing efforts. On August 21,
2019, Defendants ordered his transfer.
brings this action against Defendants for alleged violations
of his rights under the First and Eighth Amendments for
coercing him into working as an informant, encouraging him to
use methamphetamines, and ordering his transfer to another
facility out of retaliation. Dkt. #1-1 at ¶¶ 16-24.
Plaintiff claims that individuals he informed on were
transferred to other prisons, including AHCC. Id. at
¶ 8. For that reason, in addition to punitive damages,
Plaintiff seeks an order from this Court prohibiting his
transfer from MCC to “another facility that poses a
risk to my safety.” Id. at 14.
district court has jurisdiction to review a Magistrate
Judge's report and recommendation on dispositive matters.
See Fed. R. Civ. P. 72(b). “The district judge
must determine de novo any part of the magistrate judge's
disposition that has been properly objected to.”
Id. “A judge of the court may accept, reject,
or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1). The Court reviews de novo those
portions of the report and recommendation to which specific
written objection is made. United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc). Here, Plaintiff objects to the R&R's
conclusion that Plaintiff's assertions are too
speculative to meet the requisite showing for the imminent
danger exception under Section 1915(g). Dkt. #6 at 1-5.
prisoner seeking to invoke the imminent danger exception
under Section 1915(g) must make “specific, credible
allegations of imminent danger of serious physical
harm.” McNeil v. United States, No.
C05-1975-JCC, 2006 WL 581081, at *3 (W.D. Wash. Mar. 8, 2006)
(citing Kinnell v. Graves, 265 F.3d 1125, 1127-28
(10th Cir. 2001)). Courts recognize that the “imminent
danger” exception is reserved for “genuine
emergencies, where time is pressing and a threat . . . is
real and proximate.” Heimermann v. Litscher,
337 F.3d 781, 782 (7th Cir. 2003) (internal quotations
omitted). Accordingly, the Ninth Circuit requires that
imminent danger of serious physical injury exists at the time
the complaint is filed. Andrews v. Cervantes, 493
F.3d 1047, 1053 (9th Cir. 2007) (“[I]t is the
circumstances at the time of the filing of the complaint that
matters for purposes of the ‘imminent danger'
exception to § 1915(g).”).
Plaintiff claims that his prospective transfer to the AHCC
places his “imminent and future safety” in
jeopardy because of his prior work as an informant and that
“he knows his experience of working as a government
informant has placed him in harm's way.” Dkt. #6 at
4-5. As evidence of the imminent danger he faces because of
his informant work, Plaintiff references an assault that
occurred on July 22, 2019 by a “paid henchman”
who believed Plaintiff was responsible for a drug bust.
Id. at 5. Yet at the same time Plaintiff claims that
he was subject to attacks at MCC because of his informant
status, he asks that the Court “maintain my safety by
keeping me at the Monroe Correctional Complex and prohibiting
my transfer . . . .” Dkt. #1-1 at 14. By asking the
Court to preserve the status quo and prohibit his transfer to
another facility, Plaintiff undermines his own claims that he
faced imminent danger while imprisoned at MCC, which was his
location when he filed his complaint. For that reason,
Plaintiff has failed to show imminent danger of serious
physical injury at the time he filed his complaint. See
Andrews, 493 F.3d at 1053.
the Court liberally construes “imminent danger”
to include Plaintiff's upcoming transfer to AHCC, it is
unclear when the transfer will actually occur. Defendants
ordered the transfer on August 21, 2019, Dkt. #1-1 at ¶
14, but as of October 18, 2019, Plaintiff remains
“in-transit” at Washington Corrections Center in
Shelton. Dkt. #6 at 3. Moreover, the harm Plaintiff expects
to face at AHCC appears speculative as opposed to real and
proximate. He concedes “[t]his current and future
injury cannot be estimated with any degree of
accuracy.” Dkt. #1-1 at ¶ 16. He also maintains
that the prospective transfer “creates heightened fears
and accompanying stress of knowing I can and probably will be
the target of a violent attack that could cost my
life.” Id. These statements cannot reasonably
amount to “specific, credible allegations of imminent
danger of serious physical harm” for purposes of the
“imminent danger” exception under Section
1915(g). McNeil, 2006 WL 581081, at *3.
reasons set forth above, the Court finds that Plaintiff has
failed to sufficiently show “imminent danger of serious
physical injury” at the time his complaint was filed.
Accordingly, based on Plaintiff's prior litigation
history, he is not eligible to proceed in forma
pauperis. 28 U.S.C. § 1915(g).
Court, having reviewed Plaintiff's Complaint, the Report
and Recommendation of the Honorable Michelle L. Peterson,
United States Magistrate Judge, Plaintiff's Objections