Gardner v. State of WA

Opinion

EASTERN DISTRICT OF WASHINGTON

NO: 4:19-CV-5148-TOR Plaintiff, ORDER DISMISSING COMPLAINT v. 1915(g)

Defendant.

By Order filed August 9, 2019, the Court granted Plaintiff, a prisoner at the Washington State Penitentiary, the opportunity to voluntarily dismiss his pro se civil rights complaint within thirty days. ECF No. 11. Plaintiff’s complaint in which he sought a legal name change failed to state a claim upon which relief may be granted in this Court. Id. Plaintiff did not avail himself of the opportunity to voluntarily dismiss this action. Because it is absolutely clear that no amendment will cure the deficiencies of Plaintiff’s complaint, Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded by statute, 28 U.S.C. § 1915(e)(2), as recognized in Aktar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012), IT IS ORDERED the complaint, ECF No. 1, is

DISMISSED with prejudice for failure to state a claim upon which relief may be granted. 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1). Pursuant to 28 U.S.C. § 1915(g), enacted April 26, 1996, a prisoner who

brings three or more civil actions or appeals which are dismissed as frivolous or for failure to state a claim will be precluded from bringing any other civil action or appeal in forma pauperis “unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Plaintiff is advised to read the statutory

provisions under 28 U.S.C. § 1915. This dismissal of Plaintiff's complaint may count as one of the three dismissals allowed by 28 U.S.C. § 1915(g) and may adversely affect his ability to file future claims.

Accordingly, IT IS HEREBY ORDERED: 1. The complaint, ECF No. 1, is DISMISSED with prejudice for failure to state a claim upon which relief may be granted under 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1).

2. Plaintiff’s in forma pauperis status is revoked. 3. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal of this Order would not be taken in good faith.

// IT IS SO ORDERED. The Clerk of Court is directed to enter this Order, enter judgment, provide copies to Plaintiff at his last known address, and CLOSE the file. The Clerk of Court is further directed to forward a copy of this Order to the Office of the Attorney General of Washington, Corrections Division. DATED September 16, 2019. Cm. 7. 08; Gras» Chief United States District Judge