Patu v. Department of Corrections

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATION by Judge Benjamin H. Settle re 8 Objections to Report and Recommendation filed by Ricky P Patu. Plaintiff to pay filing fee by 3/14/2018 if he wishes to proceed with action. **2 PAGE(S), PRINT ALL**(Ricky Patu, Prisoner ID: 778665)(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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RICKY P. PATU,

CASE NO. C17-5940 BHS

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Plaintiff,
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v.

ORDER ADOPTING REPORT
AND RECOMMENDATION

DEPARTMENT OF CORRECTIONS,
Defendant.

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This matter comes before the Court on the Report and Recommendation (“R&R”)

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of the Honorable Theresa L. Fricke, United States Magistrate Judge (Dkt. 7), and

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Plaintiff’s objections to the R&R (Dkt. 8).

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On November 8, 2017, Plaintiff filed his proposed complaint, which was followed

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shortly by his motion to proceed in forma pauperis. Dkts. 1, 4, 5. On December 27, 2017,

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the R&R was issued wherein it is recommended that Plaintiff’s motion be denied

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pursuant to 28 U.S.C.§ 1915(g) in light of his pre-existing “three strikes.” Dkt. 7. On

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January 5, 2017, Plaintiff filed his objections. Dkt. 8.

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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

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ORDER - 1

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modify the recommended disposition; receive further evidence; or return the matter to the

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magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).

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Plaintiff attempts to raise three objections. First, he argues that the envelope

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containing the R&R (and other legal mail) was improperly opened by the prison staff

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where he is incarcerated before he received it. Second, he argues that the prison staff is

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“obscur[ing] [his] ability to relinquish [his] IFP payments” that preceded this case. Third,

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Plaintiff complains that prison staff is preventing him from ascertaining the amount he is

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required to pay in restitution. None of these objections assign any error to the R&R’s

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conclusion that Plaintiff’s in forma pauperis request is barred by his prior three “strikes.”

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Because Plaintiff has failed to establish that he is under imminent danger of serious

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physical injury, his request to proceed in forma pauperis must be denied. 28 U.S.C. §

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1915(g).

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Having considered the R&R, Plaintiff’s objections, and the remaining record, the

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Court orders that the R&R is ADOPTED. Plaintiff is ordered to pay the applicable $400

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filing fee if he wishes to proceed with this action. If Plaintiff fails to pay the applicable

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filing fee by March 14, 2017, without further order from the Court, the Clerk shall enter

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JUDGMENT dismissing the case without prejudice.

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Dated this 15th day of February, 2018.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 2