John Demos, Jr. v. Donald Holbrook ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 27 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN ROBERT DEMOS, Jr., No. 20-35394
Plaintiff-Appellant, D.C. No. 4:20-cv-05062-TOR
v.
MEMORANDUM*
DONALD HOLBROOK, WSP
Superintendent; JANE DOE, Indeterminate
Sentence Review Board Chairperson,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, District Judge, Presiding
Submitted May 18, 2021**
Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.
Washington state prisoner John Robert Demos, Jr. appeals pro se from the
district court’s order administratively closing his 42 U.S.C. § 1983 action alleging
deliberate indifference. We have jurisdiction under 28 U.S.C. § 1291. We review
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
for an abuse of discretion the district court’s denial of leave to proceed in forma
pauperis (“IFP”) and dismissal pursuant to a contempt order. In Re Fillbach, 223
F.3d 1089, 1090 (9th Cir. 2000); O’Laughlin v. Doe, 920 F.2d 614, 616 (9th Cir.
1990). We vacate and remand.
The district court denied IFP and administratively closed Demos’s action
under the Eastern District of Washington’s contempt order completely barring
Demos from filing civil actions within the district. See Demos v. U.S. Dist. Ct. for
East. Dist. of Wash., 925 F.2d 1160, 1161 (9th Cir. 1991) (confirming that the
Eastern and Western Districts of Washington have entered final prefiling orders
against Demos restricting Demos’s permission to file certain actions); Demos v.
McNichols, No. 91-CV-00027-LRS (E.D. Wash. Aug. 26, 1991) (issuing contempt
order barring Demos from initiating actions in the Eastern District of Washington).
While the contempt order does not specify an “imminent danger” exception, and
pre-dates the Prison Litigation Reform Act, the district court seems to have
construed the contempt order to include such an exception. See 28 U.S.C.
§ 1915(g). Demos alleged in the complaint that prison officials failed to treat
infected persons, require social distancing, or provide testing for staff, visitors, and
incarcerated persons, during the coronavirus pandemic. Although we take no
position on the merits or mootness of Demos’s allegations, Demos plausibly
alleged imminent danger of serious physical injury. See Williams v. Paramo, 775
2 20-35394
F.3d 1182, 1190 (9th Cir. 2015) (requiring the court to construe liberally a
prisoner’s “facial allegations” and determine if the complaint “makes a plausible
allegation” of imminent danger); see also Andrews v. Cervantes, 493 F.3d 1047,
1052, 1055 (9th Cir. 2007) (discussing the standard of review for, and the
interpretation and application of, the imminent danger exception to § 1915(g)).
We vacate the dismissal order and remand for further proceedings.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
We do not consider documents not presented to the district court because
they are not part of the record on appeal. See United States v. Elias, 921 F.2d 870,
874 (9th Cir. 1990).
VACATED and REMANDED.
3 20-35394