Demos v. Jackson

• Court: District Court, W.D. Washington
• Decided: August 10, 2022
• Docket: 3:22-cv-05480
• Status: Unknown

Opinion

1 2 3 4

5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT TACOMA 10 11 JOHN ROBERT DEMOS, JR, CASE NO. 3:22-cv-05480-TL-JRC 12 Plaintiff(s), ORDER ON REPORT AND v. RECOMMENDATION 13 ROB M JACKSON, 14 Defendant(s). 15

16 This matter comes before the Court on the Report and Recommendation of the Honorable 17 J. Richard Creatura, Chief United States Magistrate Judge (Dkt. No. 2) and Plaintiff John Robert 18 Demos, Jr.’s objections to the Report and Recommendation (Dkt. No. 3). Having reviewed the 19 Report and Recommendation, Plaintiff’s objections, and the remaining record, the Court 20 SUSTAINS Plaintiff’s objection and RETURNS the matter to Judge Creatura for further 21 consideration. 22 A district court “shall make a de novo determination of those portions of the report or 23 specified proposed findings or recommendations to which objection is made.” 28 U.S.C. 24 1 § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3) (“[The Court] must determine de novo any part of 2 the magistrate judge’s disposition that has been properly objected to.”). “The district judge may 3 accept, reject, or modify the recommended disposition; receive further evidence; or return the 4 matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); accord 28 U.S.C.

5 § 636(b)(1). A party properly objects when the party files “specific written objections” to the 6 report and recommendation as required under Federal Rule of Civil Procedure 72(b)(2). 7 Mr. Demos is under pre-filing bar orders in a number of courts, including this Court, the 8 Eastern District of Washington, the Washington State Courts, the Ninth Circuit Court of 9 Appeals, and the United States Supreme Court. See, e.g., Demos v. Storrie, 507 U.S. 290, 291 10 (1993). As a bar order litigant, Mr. Demos may submit only three in forma pauperis (“IFP”) 11 applications and proposed actions each year. See In re John Robert Demos, MC91-269-CRD 12 (W.D. Wash. Jan. 16, 1992). Because Plaintiff has had more than three prior actions filed and 13 dismissed this year, he may not proceed in forma pauperis unless he: 14 1) complies with all procedural requirements outlined in prior bar orders, see Demos

15 v. U.S. Dist. Court for the E. Dist. of Wash., 925 F.2d 1160 (9th Cir. 1991), and In 16 re Complaints and Petitions Submitted by John Robert Demos (W.D. Wash. 17 Dec. 15, 1982); 18 2) submits an affidavit that the claims presented have not been presented in any 19 other action in any court,1 see In re John Robert Demos, MC91-269-CRD (W.D. 20 Wash. Jan. 16, 1992); and 21 22

1 Mr. Demos appears to have filed multiple IFP applications and proposed complaints raising similar claims related 23 to the detention facility’s response to the ongoing coronavirus pandemic. See, e.g., Demos v. Strange et al., 3:22-cv- 05463-DGE (W.D. Wash. Jun. 23, 2022), and Demos v. Washington State Department of Corrections, 2:22-cv- 24 00724-RSL (W.D. Wash. May 26, 2022). 1 3) makes a plausible allegation that he faced imminent danger of serious physical 2 injury at the time of filing under 28 U.S.C. § 1915(g), see Andrews v. Cervantes, 3 493 F.3d 1047 (9th Cir. 2007). 4 Judge Creatura concluded that Mr. Demos is barred from proceeding IFP because the bar

5 orders in question enjoin Mr. Demos without exception once he has surpassed the annual limit. 6 Dkt. No. 2 at 2. Mr. Demos has surpassed three IFP applications for this year. Although 7 Mr. Demos’ objections are not entirely clear, he appears to challenge Judge Creatura’s 8 determination regarding the application of the bar orders without considering the “imminent 9 danger” exception under 28 U.S.C. § 1915(g). Dkt. No. 3 at 2. 10 The Court finds that the bar orders limiting Mr. Demos to three IFP applications per year 11 do not apply to subsequent applications if Mr. Demos plausibly pleads imminent danger and 12 meets all other procedural requirements of the prior injunctions. See Demos v. Holbrook, 848 F. 13 App'x 779 (9th Cir. 2021) (vacating order denying IFP and administratively closing action under 14 a bar order and remanding with instructions to consider the possible application of the imminent

15 danger exception); see also Report and Recommendation at 2 (Dkt. No. 2), Demos v. Chief 16 Judge et al., 2:20-cv-01087-RSM (W.D. Wash. Jul. 29, 2020), adopted by Order (Dkt. No. 3). 17 Although the Court sustains Mr. Demos’ specific objection, the Court will return the matter to 18 the Honorable J. Richard Creatura for further consideration consistent with this Order. 19 The Court therefore ORDERS: 20 1. Mr. Demos’ objection is SUSTAINED; 21 2. This matter to be returned to the Hon. J. Richard Creatura for further consideration of 22 whether the imminent danger exception applies, and all procedural requirements have 23 been met; and

24 1 3. The Clerk to send copies of this order to Mr. Demos and the Hon. J. Richard 2 Creatura. 3 Dated this 10th day of August 2022. 4 A 5 Tana Lin United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24