Demos v. Ferguson

[5] UNITED STATES DISTRICT COURT [6] WESTERN DISTRICT OF WASHINGTON AT SEATTLE [7] 8 JOHN ROBERT DEMOS, JR., 9 Plaintiff, CASE NO. C25-5266-TL-BAT 10 v. REPORT AND RECOMMENDATION 11 ROBERT FERGUSON, et al., 12 Defendants. 13 Plaintiff is well-known locally and nationally as an abusive litigant. He is under pre-filing 14 bar orders in a number of courts, including this Court, the Eastern District of Washington, the 15 Washington State courts, the Ninth Circuit Court of Appeals, and the United States Supreme 16 Court. See, e.g., Demos v. Storrie, 507 U.S. 290, 291 (1993). In the current proposed action, 17 plaintiff alleges that, in violation of the Constitution, the state defendants are showing deliberate 18 indifference to his serious medical needs because there are differences in medical opinion about 19 whether to treat his glaucoma aggressively or conservatively and, unless his glaucoma is treated 20 aggressively, he will go blind. Dkt. 1-1 at 6, 9; Dkt. 1-3, at 1–2. Defendants are Washington 21 State Governor Robert Ferguson, Washington State Attorney General Nicholas Brown, Airway 22 Heights Correctional Center Superintendent Ronald Haynes, Washington State Department of [23] 1 Corrections Secretary Tim Lang, and unnamed John Doe medical directors. Dkt. 1-1, at 2–4. 2 Plaintiff seeks $2 million in damages. Id. at 9. 3 As a bar order litigant, plaintiff may submit only three IFP applications and proposed 4 actions each year. See In re John Robert Demos, MC91-269-CRD (W.D. Wash. Jan. 16, 1992); 5 In re Complaints and Petitions Submitted by John Robert Demos (W.D. Wash. Dec. 15, 1982). 6 The 1992 Bar Order further provides that this Court will not accept for filing a proposed 7 complaint unless it “is accompanied by an affidavit that the claims have not been presented in 8 any other action in any court and that [Plaintiff] can and will produce evidence to support his 9 claims.” 1992 Bar Order at 3. Additionally, under 28 U.S.C. § 1915 (g), plaintiff must 10 demonstrate “imminent danger of serious physical injury” to proceed IFP because he has had 11 numerous prior actions dismissed as frivolous, malicious, or for failure to state claim. See Demos 12 v. Lehman, MC99-113-JLW (W.D. Wash. Aug. 23, 1999). 13 Plaintiff may not proceed with this action. Because plaintiff has had more than three prior 14 actions dismissed as frivolous, malicious, or for failure to state a claim, he may not proceed in 15 formal pauperis unless he alleges that he is in “imminent danger of serious physical injury.” 28 16 U.S.C. § 1915 (g); Demos, MC99-113-JLW. Plaintiff’s proposed complaint does not contain “a 17 plausible allegation that [he] faced imminent danger of serious physical injury at the time of 18 filing.” Andrews v. Cervantes, 493 F.3d 1047 (9th Cir. 2007) (internal citations omitted). 19 Plaintiff asserts that he has been examined by “various medical doctors” who have differing 20 opinions about how best to treat his glaucoma and that there has yet been no decision made about 21 whether to treat the condition aggressively or conservatively. Dkt. 1-1, at 6. That is, not only 22 may plaintiff still receive the aggressive treatment he desires, but also there is no medical 23 consensus about what kind of treatment would best serve his health interests or that plaintiff 1 would go blind should he not receive the most aggressive treatment. Moreover, rather than 2 suggest deliberate indifference to serious medical needs, the course of treatment for plaintiff’s 3 glaucoma, involving examinations by numerous medical professionals, demonstrates 4 attentiveness to plaintiff’s health concerns. Plaintiff thus has stated neither a plausible allegation 5 of imminent harm nor a plausible claim upon which relief may be granted.1 6 The Court recommends DENYING plaintiff IFP status and DISMISSING the proposed 7 complaint, Dkt. 1, without prejudice in accordance with 28 U.S.C. § 1915 (e)(2)(B) & (g) and 8 standing bar orders. See In re John Robert Demos, MC91-269-CRD (W.D. Wash. Jan. 16, 1992); 9 In re Complaints and Petitions Submitted by John Robert Demos (W.D. Wash. Dec. 15, 1982). A 10 proposed Order is attached. 11 OBJECTIONS AND APPEAL 12 This Report and Recommendation is not an appealable order. Therefore a notice of 13 appeal seeking review in the Court of Appeals for the Ninth Circuit should not be filed until the 14 assigned District Judge enters a judgment in the case. 15 Objections, however, may be filed and served upon all parties no later than April 15, 16 2025. The Clerk should note the matter for April 15, 2025, as ready for the District Judge’s 17 consideration. Objections and responses shall not exceed twelve (12) pages. The failure to timely 18 object may affect the right to appeal. [22] 1 The Court notes that in addition to the current action, plaintiff has other active IFP applications [23] and proposed civil rights actions. See Demos v. Ewing, C25-413-MJP-DWC (filed March 4, 2025); Demos v. Trump, C25-5249-BHS-DWC (filed March 19, 2025). 1 DATED this 1st day of April, 2025. 2 A [3] BRIAN A. TSUCHIDA United States Magistrate Judge