Allah v. Spanner

Opinion

1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Dec 03, 2021

3 UNITED STATES DISTRICT COURT SEAN F. MCAVOY, CLERK EASTERN DISTRICT OF WASHINGTON 4 ALLAH©, SP/C, 5% NATION OF No. 4:21-cv-05130-SMJ 5 ISLAM,

6 Plaintiff, ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS 7 v. AND DISMISSING CASE

8 BRUCE A. SPANNER, TEDDY CHOW, MELISA FARIS, RUBY A. 9 OCHOA, PEYMAN YOUNESI, DONALD R. HOLBROOK GENIE 10 RANDOLPH, MELANIE PERKINS, THOMAS O. RICE, STANLEY A. 11 BASTIAN, MARSHA J. PECHMAN, CHERYL STRANGE, and ALL JOHN 12 AND JANE DOES NOT YET MENTIONED, 13 Defendants. 14

15 By Order filed October 29, 2021, the Court directed Plaintiff Allah©, 16 prisoner number 950376 confined at the Washington State Penitentiary, to show 17 cause why the Court should grant his application to proceed in forma pauperis. ECF 18 No. 19 at 4. In the alternative, Plaintiff could have paid the $402.00 filing fee. Id. 19 On November 8, 2021, Plaintiff filed a 40-page Response, including a 31- 20 page “Amended Petition for Writ of Habeas Corpus.” ECF No. 20. On November 1 29, 2021, he filed a 31-page “Supplemental Affidavit of Truth and Add Names of 2 John and Jane Does to Complaint and Showing Cause for Immediate Release

3 Documents From King Co. Prove Racially Motivated Hate Crime.” ECF No. 22. 4 After careful review of Plaintiff’s submissions, the Court finds that Plaintiff has 5 failed to demonstrate that he was under imminent danger of serious physical injury

6 when he initiated this case and is thus precluded under 28 U.S.C. § 1915(g) from 7 proceeding in this action without prepayment of the filing fee. See O’Neal v. Price, 8 531 F.3d 1146, 1153 (9th Cir. 2008). 9 Plaintiff does not refute the Court’s finding that he filed three or more actions

10 that were dismissed as frivolous, malicious or for failure to state a claim upon which 11 relief may be granted. See ECF No. 19 at 2–3. Rather, he claims that “28 U.S.C. § 12 1915(g), is Barred by the ‘Fruit of the Poisonous Tree’ Doctrine,” asserting that he

13 as been “pursuing discovery diligently, not knowing that the documents that Allah© 14 was seeking to discover were being intentionally hidden and Falsely labeled.” Id. at 15 1 (as written in original). Plaintiff argues there is “no Warrant of Commitment on 16 File” justifying his continued confinement. Id.

17 Plaintiff also asserts that he is in imminent danger of two hernias “caused by 18 DOC/WSP, and the U.S. Marshals, when they illegally transported Allah© to the 19 Federal Jail in Sea Tac, to do an evaluation (which didn’t work out to well), the

20 Federal Jail guards ruffed Allah© up while Allah© was in handcuff’s to Force 1 Allah’s© Fingerprints and picture on the name Edwin R. Coston, in U.S.D.C. East. 2 Dist. Spokane, Case No. 13-cr-112-ALH/TOR.” ECF No. 20 at 2 (as written in

3 original). Plaintiff attaches a “Refusal of Medical, Dental, Mental Health, and/or 4 Surgical Treatment” form that he signed on January 14, 2020, noting he had refused 5 hernia repair and was cautioned this refusal may result in “enlargement of the

6 hernia, incarcerated hernia, strangulated hernia and death.” Id. at 8. The Court finds 7 Plaintiff’s refusal of medical treatment in 2020, without more, insufficient to avoid 8 the preclusive effects of 28 U.S.C. § 1915(g). 9 Having reviewed Plaintiff’s submissions, the Court finds that he has failed to

10 demonstrate that the Court erred in finding that he is no longer eligible to proceed 11 in forma pauperis under 28 U.S.C. § 1915(g), or that he was under imminent danger 12 of serious physical injury when he filed his complaint. See Andrews v. Cervantes,

13 493 F.3d 1047, 1055–56 (9th Cir. 2007). Therefore, Plaintiff has lost the privilege 14 of filing this lawsuit in forma pauperis. 15 Although granted the opportunity to do so, Plaintiff did not pay the $402.00 16 filing fee to commence this action filed on September 24, 2021, ECF No. 1. As a

17 result, this Court dismisses this case without prejudice for failure to comply with 18 the filing fee requirements of 28 U.S.C. § 1914. 19 //

20 // 1 Accordingly, IT IS HEREBY ORDERED: 2 1. This case is DISMISSED WITHOUT PREJUDICE for failure to 3 comply with the filing fee requirements of 28 U.S.C. § 1914. 4 2. All pending motions are DENIED AS MOOT.

5 3. The Court certifies any appeal of this dismissal would not be taken in

6 good faith.

7 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order, 8 enter judgment, provide copies to pro se Plaintiff at his last known address, and 9 || CLOSE the file.

10 DATED this 3" day of December 2021. ll (ad brendan SALVADOR MENDOZ/. IR. 12 United States District Judge 13 14 15 16 17 18 19 20

ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS AND