Washington Cases September 17, 2021: Demos v. United States

Case Description

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Noting Date: October 8, 2021.

REPORT AND RECOMMENDATION

David W. Christel, United States Magistrate Judge.

Plaintiff John Demos, Jr., a state prisoner, has filed a motion for leave to proceed in forma pauperis (“IFP”) and a proposed civil rights complaint. Dkt 1; Dkt. 1-1. As discussed below, the Court denies the IFP motion and dismisses without prejudice the proposed complaint.

Plaintiff was convicted in 1978 of attempted rape and first-degree burglary and received an indeterminate sentence of 240 months to life in prison. See State v. Demos , 619 P.2d 968, 969 (Wash. 1980). Plaintiff is well-known locally and nationally as an abusive litigant. He is under pre-filing bar orders in a number of courts, including this Court, the Eastern District of Washington, the Washington State courts, the Ninth Circuit Court of Appeals, and the United

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States Supreme Court. See, e.g. , Demos v. Storrie , 507 U.S. 290, 291 (1993) (per curiam). An order of this Court provides for the return without filing of any petition that seeks an extraordinary writ pursuant to 28 U.S.C. §§ 1651, 2253 or 2254, unless accompanied by the filing fee. See Demos v. Stanley , MC97-0031-JLW (W.D. Wash. Mar. 13, 1997). In addition, Plaintiff may submit only three IFP applications and proposed actions each year. See In re John Robert Demos , MC91-269-CRD (W.D. Wash. Jan. 16, 1992); In re Complaints and Petitions Submitted by John Robert Demos (W.D. Wash. Dec. 15, 1982). Moreover, “Mr. Demos has accumulated at least three strikes in federal court [under 28 U.S.C. § 1915(g)].” Demos v. Keating , 33 Fed.Appx. 918, 920 & n.1 (10th Cir. 2002) (per curiam). Therefore, because he has had more than three prior actions dismissed as frivolous, malicious, or for failure to state claim, Plaintiff must demonstrate that he is in “imminent danger of serious physical injury” to proceed IFP. See Demos v. Lehman , MC99-113-JLW (W.D. Wash. Aug. 23, 1999).

Here, Plaintiff appears to allege that his inability to vote as a state prisoner constitutes “voter fraud” and violates various provisions of federal law. Dkt. 1-1 at 2-3, 8. Plaintiff also alleges, without factual support, that he “was never duly convicted.” Id. at 3. Plaintiff does not allege that he is in imminent danger of serious physical injury. Id. at 1-8.

Here, the Court should deny Plaintiff's IFP motion and dismiss the proposed complaint without prejudice. Plaintiff cannot proceed IFP because he has not alleged that he is in imminent danger of serious physical injury. Furthermore, Plaintiff has surpassed his annual limit of three IFP actions. Report and Recommendation at 2, Demos v. Federal PREA Reporting Office , 2:21-cv-01221-RAJ (W.D. Wash. Sept. 14, 2021) (collecting cases), Dkt. 2. Additionally, if Plaintiff seeks to challenge his conviction, he has not paid the filing fee as this Court's order requires.

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Accordingly, it is RECOMMENDED that Plaintiff's IFP motion (Dkt. 1) be DENIED , that his proposed complaint (Dkt. 1-1) be DISMISSED without prejudice, and that this case be CLOSED .

Pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the Parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C). Accommodating the time limit imposed by Fed.R.Civ.P. 72(b), the Clerk is directed to set the matter for consideration on October 8, 2021 as noted in the caption.