Demos v. U.S. Secretary of Defense

Filing 2

ORDER denying 1 Motion for Leave to Proceed in forma pauperis. Any appeal taken in forma pauperis from this order would not be taken in good faith because such an appeal would be frivolous. This case is CLOSED. Signed by District Judge J. Garvan Murtha on 2/11/2013. (kak)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
John R. Demos,
Plaintiff,
v.
United States Secretary
of Defense,
Defendant.

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Case No. 1:13-cv-21-jgm

OPINION AND ORDER
(Doc. 1)
Pro se plaintiff John R. Demos, an inmate currently
incarcerated in the State of Washington, claims that President
Barack Obama has issued an oral order authorizing his release
from prison.

Demos alleges he was convicted by a United States

military court of selling military secrets, the President has
ordered his release, but the Governor of the State of Washington
has failed to comply with the order.

Now before the Court is

Demos’s motion for leave to proceed in forma pauperis.
The federal in forma pauperis statute provides that the
Court may authorize “the commencement, prosecution or defense of
any suit, action or proceeding, . . . without prepayment of fees
. . . , by a person who submits an affidavit that includes a
statement of all assets such prisoner possesses that the person
is unable to pay such fees or give security therefor.”
§ 1915(a)(1).

28 U.S.C.

However, the law also provides that “[i]n no event

shall a prisoner bring a civil action . . . if the prisoner has,

on 3 or more prior occasions, while incarcerated or detained in
any facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief
may be granted, unless the prisoner is under imminent danger of
serious physical injury.”

28 U.S.C. § 1915(g).

In 1994, one federal court noted that Demos has a “long
history of filing frivolous pleadings.”

Demos v. Shalala, 1994

WL 238840, at *1 (D.D.C. May 16, 1994); John Robert Demos v.
Kincheloe et al., 563 F. Supp. 30 (E.D. Wa. 1982) (dismissing 17
civil complaints and 3 habeas corpus petitions as “frivolous,
malicious, repetitive, de minimis, wholly insubstantial, or
insufficient to invest the court with subject matter
jurisdiction”).

In fact, since 1991 he has filed over 100

petitions or complaints around the country.

See Demos v. Glebe,

2010 WL 1253532, at *1 (N.D. Okla. March 22, 2010).

The instant

case is Demos’s fifth filing in the District of Vermont.

See

Demos v. State of Vermont, No. 5:10-cv-88; Demos v. United
States, No. 1:08-CV-167; Demos v. U.S. Sec’y of State, No.
1:04-CV-293; Demos v. U.S. Attorney General, No. 2:01-CV-157.
The Court also notes that the United States Supreme Court, citing
Demos’s numerous frivolous filings in that Court, has denied him
permission to submit an in forma pauperis petition on any writ of

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certiorari in a non-criminal matter.

See Demos v. Storrie, 507

U.S. 290, 290-91 (1993).
Given this pattern of frivolous filings, courts have found
Demos in violation of Section 1915’s “three strikes rule.”

See

Demos v. United States, 2010 WL 4530249, at *2 (W.D. Pa. Oct. 8,
2010) (citing cases).

Accordingly, Demos must allege imminent

danger of serious physical injury in order to proceed in forma
pauperis.

See 28 U.S.C. § 1915(g).

The proposed Complaint makes

no such allegation.
Demos is therefore barred from proceeding in forma pauperis,
and his motion for leave to proceed without prepayment of fees
(Doc. 1) is DENIED.

This case is DISMISSED pursuant to 28 U.S.C.

§ 1915(g), without prejudice to Demos’s right to re-open the case
upon payment of the filing fee of $350.00.

Demos will note,

however, that he has been warned by this Court that “future
frivolous filings in this District may result in an injunction
and, if necessary, sanctions.”

Demos v. United States of

America, No. 1:08-CV-167 (Doc. 4 at 2).

This warning remains in

effect for any future filing in this Court.
It is further certified that any appeal taken in forma
pauperis from this Order would not be taken in good faith because
such an appeal would be frivolous.
This case is CLOSED.
SO ORDERED.

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See 28 U.S.C. § 1915(a)(3).

Dated at Brattleboro, in the District of Vermont, this 11th
day of February, 2013.
/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge

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