Entler v. Gonzalez et al

Filing 5

ORDER TO SHOW CAUSE re 1 MOTION for Leave to Proceed In Forma Pauperis filed by John Thomas Entler; signed by Magistrate Judge J Richard Creatura. Show Cause Response or filing fee due by 7/14/2017. **4 PAGE(S), PRINT ALL**(John Entler, Prisoner ID: 964471)(CMG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JOHN THOMAS ENTLER,
Plaintiff,

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CASE NO. 3:17-CV-05407-RBL-JRC
ORDER TO SHOW CAUSE

v.
ROY GONZALEZ et al,
Defendants.

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Plaintiff has filed an application for leave to proceed in forma pauperis (IFP) and a

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proposed 42 U.S.C. § 1983 complaint. Dkts. 1, 3. In his 262-page proposed complaint, plaintiff

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alleges that defendants have violated his Eighth Amendment rights by allowing other inmates to

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access plaintiff’s previous criminal cases on the law library computers. Dkt. 1-1. Plaintiff also

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contends that his religious beliefs have been infringed upon by the Department of Corrections

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“no personal computer” policy. Id.

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Section 1915(g), enacted April 26, 1996, provides that a prisoner who brings three or

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more civil actions or appeals that are dismissed as frivolous or for failure to state a claim will be

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precluded from bringing any other civil action or appeal in forma pauperis “unless the prisoner is

ORDER TO SHOW CAUSE - 1

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under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Plaintiff concedes that

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he has filed three or more cases that have been dismissed as frivolous or for failure to state a

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claim. Dkt. 1-1 at 6. In addition, a review of court records from this District shows that at least

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three of the cases that plaintiff filed while incarcerated were dismissed as frivolous or for failure

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to state a claim.

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The first strike occurred in Entler v. Vail, Case No. 08-5695, and plaintiff’s case was

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dismissed for failure to state a claim with the direction that the dismissal shall count as a strike

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pursuant to 28 U.S.C. § 1915(g). See Dkts. 15, 18, 25 in Case No. 08-5695. The second strike

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occurred in Entler v. Van Deren, et al., Case No. 10-5309, where the Ninth Circuit found his

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appeal frivolous. See Dkt. 11 in Case No. 10-5309. The third strike occurred in Entler v.

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McKenna, Case No. 11-5081, and plaintiff’s case was dismissed for failure to state a claim. See

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Dkts. 18, 28 in Case No. 11-5081. See also Entler v. Gregoire et al., Case no. 12-5141 (E.D.

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Wash.) at Dkts. 25 (finding plaintiff had three-strikes and granting defendants’ motion to revoke

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plaintiff’s in forma pauperis status). See U.S. ex rel. Robinson Rancheria Citizens Council v.

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Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (This court may take notice of judicial

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proceedings in another court.).

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Thus, plaintiff may not proceed with this complaint without prepayment of the full filing

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fee, absent a showing that he was “under imminent danger of serious physical injury,” at the time

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he signed his civil rights complaint on May 23, 2017. See 28 U.S.C. § 1915(g). “[A] prisoner

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who alleges that prison officials continue with a practice that has injured him or others similarly

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situated in the past will satisfy the ‘ongoing danger’ standard and meet the imminence prong of

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the three-strikes exception.” Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). A

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plausible allegation that the prisoner faced “imminent danger of serious physical injury” will

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ORDER TO SHOW CAUSE - 2

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satisfy this requirement. Id. at 1056 (inmate alleged that the threat he faced from contagious

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diseases violated the Eighth Amendment’s prohibition against cruel and unusual punishment, and

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submitted specific facts supporting such a claim).

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In his complaint, plaintiff alleges that defendants have harmed him because the prison

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law library computers contain unpublished opinions related to plaintiff’s criminal history. Dkt. 1-

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1 at 6. Plaintiff contends that defendants know that other prisoners will use this information to

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target plaintiff. Id. Plaintiff also alleges that his inability to possess a personal computer infringes

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on his religious beliefs. Id. However, plaintiff makes no allegation that he was under “imminent

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danger of serious physical injury,” at the time he filed his complaint, see Andrews v. Cervantes,

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493 F.3d at 1053. The allegations raised in plaintiff’s proposed complaint allege nothing more

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than the fact that defendants permit other inmates to access public information on the law library

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computers. Defendants, both Department of Corrections employees, do not have control over the

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dissemination of such public information, and plaintiff has not alleged any facts showing how

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defendants have acted to place in imminent danger of harm or failed to protect him from

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imminent danger of harm. Nor has plaintiff alleged any facts showing how the “no personal

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computer” policy results in any particular and continuing injury or threat of harm.

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In response to this Order, plaintiff should plead specific facts, if any, related to his

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particular and continuing injury, and facts related to whether or not defendants knew of the

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particular harm and failed to address the harm. If he is able to allege such facts, then he may

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qualify for § 1915(g)’s exception to the three-strikes bar. See Austin v. Manuma, 2012 WL

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1435690, at *2 (D. Haw. Apr. 25, 2012).

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Therefore, IT IS ORDERED that plaintiff shall show cause by July 14, 2017 why his
application to proceed in forma pauperis should not be denied. Failure to do so will be construed

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ORDER TO SHOW CAUSE - 3

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as plaintiff’s consent to dismissal of this action without prejudice for failure to comply with the

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filing fee requirements of 28 U.S.C. §§ 1914 and 1915.

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In the alternative, plaintiff may pay the $400.00 filing fee for this action by July 14, 2017,

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2016. Plaintiff is advised that if he elects to pay the $400.00 filing fee and proceed with this

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action, the Court will address the deficiencies of his complaint in a separate order.

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Dated this 30th day of June, 2017.

A

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J. Richard Creatura
United States Magistrate Judge

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