Lee v. Brigadoon Dogs

Filing 10

ORDER ADOPTING REPORT AND RECOMMENDATIONS by Judge Benjamin H. Settle re 9 Objections to Report and Recommendation, filed by Donald Morris Lee. Plaintiff has until February 10, 2017 to pay filing fee to proceed with this action.**2 PAGE(S), PRINT ALL**(Donald Lee, Prisoner ID: 356696)(TG)

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1 2 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 3 4 DONALD MORRIS LEE, 5 Plaintiff, CASE NO. C16-5914BHS-JRC ORDER ADOPTING REPORT AND RECOMMENDATION 6 v. 7 BRIGADOON DOGS, Defendant. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 This matter comes before the Court on the Report and Recommendation (“R&R”) of the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. 7), and Plaintiff Donald Morris Lee’s (“Lee”) objections to the R&R (Dkt. 9). On November 22, 2016, Judge Creatura issued the R&R recommending that the Court deny Morris’s motion to proceed in forma pauperis because he has three previous strikes and fails to meet the immediate danger exception. Dkt. 7. On December 7, 2016, Morris filed objections. Dkt. 9. The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). In this case, Morris objects to the R&R arguing that (1) the three previous dismissals should not be considered strikes and (2) he should be allowed to proceed in ORDER - 1 1 forma pauperis because his rights have been violated. Dkt. 9, 9-1. Regarding the former 2 issue, the Court agrees with Judge Creatura that Lee filed three previous cases that were 3 dismissed as frivolous, malicious, or for failure to state a claim. Dkt. 7 at 3. Although 4 the Ninth Circuit Court of Appeals granted Lee’s motion to appeal in forma pauperis in 5 his most recent dismissal, the district court dismissed the case for failure to state a claim. 6 See Lee v. Brier et al., Case No. 2:14-cv-01994-MJP (W.D. Wash.). Therefore, the Court 7 adopts the R&R on this issue. 8 Regarding Lee’s assertion that his rights have been violated, the assertion 9 concedes that he is not in immediate danger. The event involving the loud, barking dogs 10 that allegedly caused his post traumatic syndrome has already occurred as alleged in the 11 complaint. Accordingly, the Court having considered the R&R, Lee’s objections, and the 12 remaining record, does hereby find and order as follows: 13 (1) The R&R is ADOPTED; 14 (2) Lee’s motion to proceed in forma pauperis is DENIED; 15 (3) Lee must pay the filing fee to proceed with this action no later than 16 17 February 10, 2017; and (4) Failure to timely pay the fee will result in DISMISSAL by the Clerk with 18 no further action by the Court. 19 Dated this 26th day of January, 2017. 20 21 A BENJAMIN H. SETTLE United States District Judge 22 ORDER - 2

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