Adams v. Fisher

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 RYAN SCOTT ADAMS, Case No. 2:25-cv-01372-TMC 8 Plaintiff, ORDER ADOPTING REPORT AND 9 RECOMMENDATION v. 10 GERALD BANNER et al, 11 Defendant. 12 13 14 The Court, having reviewed Plaintiff Ryan Adams’s second amended complaint 15 (Dkt. 11); the Report and Recommendation of the Honorable S. Kate Vaughan, United States 16 Magistrate Judge (Dkt. 14); Mr. Adams’s objections to the Report and Recommendation 17 (Dkt. 16); and the remaining record, hereby finds and ORDERS: 18 (1) The Court adopts the Report and Recommendation. 19 a. The Court has conducted de novo review of the Report and Recommendation 20 based on Mr. Adams’s objections. Fed. R. Civ. P. 72(b); United States v. 21 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 22 b. Mr. Adams objects that “Adams v. Jackson 4:24-cv-05041-SAB was 23 determined not frivolous (at least one issue) by the 9th Cir. (case No. 24- 24 1 7814)” so it should not count as a “strike” under the Prison Litigation Reform 2 Act, 28 U.S.C. § 1915(g). Dkt. 16 at 2. Mr. Adams is referring to the Ninth 3 Circuit’s decision to allow him to appeal in forma pauperis from the dismissal 4 of that case—he is correct that the Ninth Circuit found that his appeal 5 “involves at least one non-frivolous issue.” Adams v. Jackson, No. 24-7814, 6 Dkt. 7 (9th Cir. Oct. 23, 2025). But the U.S. Supreme Court has held that a 7 district court must count a previous dismissal under § 1915(g) as a strike 8 “even though it remains pending on appeal.” Coleman v. Tollefson, 575 U.S. 9 532, 534 (2015). The Ninth Circuit’s determination that Mr. Adams’s appeal 10 presents at least one non-frivolous issue thus does not alter the analysis that 11 the underlying dismissal counts as a strike. For good measure, the Court has 12 reviewed all three cases that Judge Vaughan counted as strikes and agrees 13 with the Report & Recommendation. 14 c. Mr. Adams objects to the Report & Recommendation’s conclusion that he has 15 failed to show he “is under imminent danger of serious physical injury,” 16 which would allow him to avoid the PLRA’s three-strikes rule. 28 U.S.C. 17 § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1049–50 (9th Cir. 2007). He 18 writes that the Magistrate Judge “ignored [that] Counts 1, 2, 3 (mental health), 19 4, 5 all address forms of danger to myself physically (the violence already 20 occurred, Count 4 occurred while I was trying to reply to this case in 21 October). Count 3 has ongoing mental health problems associated with my 22 current placement.” Dkt. 16 at 2. 23 d. Under Andrews, the Court evaluates whether “the complaint makes a plausible 24 allegation that the prisoner faced ‘imminent danger of serious physical injury’ 1 at the time of filing.” 493 F.3d at 1055. This can be demonstrated through a 2 plausible factual allegation of harm that is “imminent or occurring at the time 3 the complaint is filed”; “ongoing serious physical injury” or “a pattern of 4 misconduct evidencing the likelihood of imminent serious physical injury”; or 5 other factual allegations that show “an ongoing danger.” Id. at 1056 (citation 6 modified). Examples include exposure to a dangerous illness such as hepatitis 7 or tuberculosis; the failure to provide a tooth extraction, leading to infection; 8 or an ongoing pattern of placing an inmate near a group of other inmates with 9 a history of causing him serious injuries. See id. at 1056–57. 10 e. Mr. Adams’s complaint contains three sets of allegations that relate to 11 physical injury. First, he alleges that he was subject to excessive force on 12 September 19, 2023 at Clallam Bay Corrections Center (see Dkt. 11 at 11), 13 and again on October 29, 2025 at Monroe Correctional Complex (Dkt. 11 at 14 19). But the circumstances alleged do not show a connection between the 15 incidents that would amount to a pattern of misconduct creating an ongoing 16 danger. See Andrews, 49 F.3d at 1056. Second, Mr. Adams alleges that while 17 he was at Monroe from February to October 2025, the ventilation system blew 18 “a black powdery substance” into his cell that caused him to cough up “crud 19 or black phlegm.” Dkt. 11 at 14. Finally, Mr. Adams alleges that while at 20 Monroe from February to October 2025, prison officials were deliberately 21 indifferent to his mental health care needs, causing him to harm himself. 22 Dkt. 11 at 15–17. But these second and third sets of allegations do not show 23 imminent or ongoing danger, because Mr. Adams has since been sent back to 24 Clallam Bay. Although Mr. Adams’s objections claim that Count 3 of his l complaint (related to his mental health) shows ongoing problems with his 2 current placement, that is not supported by the allegations of the complaint. 3 Mr. Adams’s objection is therefore overruled, and the Court adopts the Report 4 and Recommendation. 5 (2) Plaintiff's application to proceed with this action in forma pauperis (Dkt. 5) is 6 DENIED. 7 (3) Plaintiff is directed to pay the $405 filing fee within thirty (30) days of the date on 8 which this Order is signed. Failure to timely submit the filing fee will result in 9 immediate dismissal of this action. 10 (4) Plaintiff's pending motions for appointment of counsel (Dkt. 12) and for court 11 intervention (Dkt. 13) are DENIED as moot. 12 (5) The Clerk is directed to send copies of this Order to Plaintiff and to the Honorable S. 13 Kate Vaughan. 14 15 Dated this 3rd day of April, 2026. Se 17 Tiffany. Cartwright United States District Judge 18 19 20 21 22 23 24