Entler v. Van Deren et al

Filing 5

ORDER ADOPTING REPORT AND RECOMMENDATIONS by Judge Benjamin H Settle re 4 Objections to Report and Recommendation filed by John Thomas Entler. (TG)(cc mailed to plaintiff)

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA JOHN THOMAS ENTLER, Plaintiff, v. MARYWAVE VAN DEREN, et al., Defendants. No. C10-5390BHS ORDER ADOPTING REPORT AND RECOMMENDATION

This matter comes before the Court on the Report and Recommendation of the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. 3) and Plaintiff's ("Entler") objection to the Report and Recommendation (Dkt. 4). The Court has considered the Report and Recommendation, Entler's objection, and the remaining record, and hereby adopts the Report and Recommendation. I. DISCUSSION This matter arises out of Entler's application to proceed in forma pauperis in a 42 U.S.C. §1983 civil rights action. See Dkt. 1. On June 2, 2010, Entler filed his application to proceed in forma pauperis as well an attachment titled, "Proposed Prisoner Civil Rights Complaint." See Dkt. 1 at 1. The Magistrate Judge issued a Report and Recommendation on Entler's application to proceed in forma pauperis, recommending that Entler's application be denied. Dkt. 3. On August 20, 2008, Entler filed an objection to the Report and Recommendation, conceding that his civil

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rights complaint was premature and his application to proceed in forma pauperis was improperly supported. Dkt. 4 at ¶ 1. Today, Entler has yet to file the requisite trust account statement, consent form, service copies, or Marshal's forms required with an in forma pauperis application. An in forma pauperis application cannot be considered without these application materials, as correctly found by the Magistrate Judge and acknowledged by Entler. See Dkts. 3 at 2; 2 at ¶ 1. In his objection, Entler also claims that the Magistrate Judge committed fraud by finding that Entler misled the court by misrepresenting the number of times that Entler has filed a complaint. See Dkt. 4 at 2-3. In Entler's complaint, Entler answered that he had filed four lawsuits when asked on the complaint form how many other lawsuits he had brought in any federal court while a prisoner. Dkt. 1 at 1. Furthermore, in the complaint, Entler described five different lawsuits that he had previously brought. Dkt. 1, attach. 2 at 5-8. Upon inquiry, the Magistrate Judge discovered that Entler had actually brought seven federal lawsuits while a prisoner. Dkt. 3 at 2. Entler argues that habeas corpus and § 1983 claims do not "qualify as prior [lawsuits]," citing to Andrews v. King, 389 F.3d 1113 (9th Cir. 2005), and Naddi v. Hill, 106 F.3d 275 (9th Cir. 1997). Dkt. 4 at ¶ 2. Entler's reliance on Andrews and Naddi (Dkt. 4 at ¶ 2) is misplaced because those cases held that only habeas corpus claims would not count as a strike against the prisoner for purposes of the Prison Litigation Reform Act. See Andrews, 389 F.3d at 1122, quoting Naddi, 106 F.3d at 277. The complaint form requires all federal lawsuits to be listed, including all habeas corpus suits. See Dkt. 1 at 1. The Magistrate Judge did not improperly find that Entler misrepresented the number of prior lawsuits filed. Dkt. 3 at 4. Furthermore, a Magistrate Judge is judicially immune, therefore, Entler's fraud claim has no merit. See Mullis v. United States Bankruptcy Court, 828 F.2d 1385, 1390 (9th Cir. 1987); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). Finally, Entler objects to the Magistrate Judge's finding that Entler's claims are not meritorious because they are barred by judicial immunity and should be dismissed. Dkt. 4 at
ORDER ­ 2

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4-7. Entler's claims are solely against Washington State appellate court and Supreme Court judges. See Dkt. 1. A frivolous in forma pauperis complaint is one that has no arguable basis in law or fact. See Franklin v. Murphy, 745 F.2d 1221, 1227 (9th Cir. 1984). Entler's claims are frivolous and cannot proceed, as they are barred by judicial immunity. See Ashelman, 793 F.2d at 1075 (a judge is absolutely immune for all judicial acts within the jurisdiction of their court). Therefore, the Magistrate Judge properly recommended that Entler's claims should be dismissed. II. CONCLUSION Therefore, the Court ADOPTS the report and recommendation. Entler's application to

10 proceed in forma pauperis is DENIED and Entler's claims are DISMISSED without 11 prejudice. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER ­ 3

DATED this 1st day of October, 2010.

A

BENJAMIN H. SETTLE United States District Judge