Demos v. Trump

Filing 6

MEMORANDUM OPINION AND ORDER accepting and incorporating the 5 Proposed Findings and Recommendations by Magistrate Judge Tinsley; directing that the plaintiff's 1 Application to Proceed In Forma Pauperis be, and it hereby is, DENIED; and this civil action be, and it hereby is, DISMISSED without prejudice from the docket of this court. Signed by Senior Judge John T. Copenhaver, Jr. on 11/25/2024. (cc: counsel of record; any unrepresented parties; Magistrate Judge Tinsley) (jsa)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
JOHN ROBERT DEMOS,
Plaintiff,
v.

Civil Action No. 2:24-cv-00027

DONALD JOHN TRUMP,
Former U.S. President,
Defendant.
MEMORANDUM OPINION AND ORDER
On January 10, 2024, plaintiff, a Washington state
prisoner proceeding pro se, and with no apparent connection to
the Southern District of West Virginia, filed a complaint in
this District naming former United States President Donald J.
Trump as the sole defendant.

ECF 2.

The case was previously

referred to the Honorable Dwane L. Tinsley, United States
Magistrate Judge, for submission of proposed findings and
recommendations (“PF&R”).

Judge Tinsley filed a PF&R on

November 1, 2024, (ECF 5), to which neither party objected.
Plaintiff seeks monetary damages and unspecified
declaratory and injunctive relief related to his allegations in
his complaint that, on January 6, 2020, defendant gave his
“blessing and authority to engage in rebellion against the U.S.

Government and election officials” and engaged in insurrection,
rebellion, and treason during the “Wash. D.C. Capitol [riots].”
PF&R at 1-2.

Plaintiff alleges that this conduct shut down

various branches of federal government which allegedly prevented
him from “petitioning the Government for a redress of
grievances” and violated his Fourteenth Amendment rights and
other provisions of the United States Constitution.

Id.

He

also filed an Application to Proceed In Forma Pauperis seeking
to proceed without pre-payment of the applicable filing fee.
See ECF 1.
Judge Tinsley determined that plaintiff has filed over
450 lawsuits in many federal courts around the country since
1991, and he took judicial notice that plaintiff has had prefiling bar orders issued in various federal courts.

Id. at 3.

Judge Tinsley analyzed plaintiff’s filing under the
Prison Litigation Reform Act of 1995 (“PLRA”) and 28 U.S.C §
1915(g) and determined that plaintiff has filed at least 3
frivolous or malicious filings.

He further found that plaintiff

has not asserted and cannot reasonably assert that he is under
imminent danger of serious physical injury under the exception
to the three-strikes rule of 28 U.S.C § 1915(g).

Id. at 4.

recommends that the court find that plaintiff, while

He

incarcerated, has filed at least 3 federal civil actions that
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have been dismissed as frivolous or malicious, or for failure to
state a claim upon which relief can be granted, and he thus
qualifies for application of the three strikes provision
contained in § 1915(g).

Judge Tinsley thus recommends dismissal

of the civil action, without prejudice, under 28 U.S.C §
1915(g).
The court need not review, under a de novo or any
other standard the factual or legal conclusions of the
magistrate judge as to those portions of the findings and
recommendations to which no objection has been raised.

See

Thomas v. Arn, 474 U.S. 140 (1985); see also 28 U.S.C. §
636(b)(1) (“A judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.”) (emphasis added).

Failure to timely file objections

constitutes a waiver of de novo review and the plaintiff’s right
to appeal the order of the court.

See 28 U.S.C. § 636(b)(1);

Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989).
Objections in this case having been due on November 18, 2024,
and none having been filed, this matter may be duly adjudicated.

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Accordingly, it is ORDERED that:
1. The findings and recommendations made in the magistrate
judge’s Proposed Findings and Recommendations be, and
hereby are, ADOPTED by the court and incorporated herein;
2. The plaintiff’s Application to Proceed In Forma Pauperis
be, and it hereby is, DENIED;
3. This civil action be, and it hereby is, DISMISSED without
prejudice from the docket of this court.
The Clerk is directed to transmit copies of this order
to all counsel of record, any unrepresented parties, and the
United States Magistrate Judge.
ENTER: November 25, 2024

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