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AND ORDER RESTRICTING FUTURE

IN FORMA PAUPERIS FILINGS

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

_______________________________________)

RICHARD ROY SCOTT, )

) No. C06-5172FDB

Plaintiff, ) 

v. ) ORDER ADOPTING REPORT AND

) RECOMMENDATION AND ORDER

WALTER WEINBERG, et al., ) RESTRICTING FUTURE IN FORMA

) PAUPERIS FILINGS

Defendants. ) _______________________________________)

I. INTRODUCTION

This matter comes before the Court on the Honorable J. Kelley Arnold’s “Report and

Recommendation to Deny Injunctive Relief, Dismiss This Action as Malicious, Declare Plaintiff

a Vexatious Litigant, and Limit Future Filings IFP” (Dkt. #75). Because Judge Arnold

recommends limiting plaintiff Richard Roy Scott’s future filings in forma pauperis in this

district, the Report and Recommendation was referred to the Chief Judge for review. This Court

adopts the Report and Recommendation, and for the additional reasons set forth below, enters

the recommended vexatious litigant pre-filing restriction against plaintiff.

II. DISCUSSION

A. Background

Plaintiff is civil detainee currently being housed at the Special Commitment Center for

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sexually violent predators operated by the State of Washington. This action was stayed pending

the Court’s consideration of Judge Arnold’s Report and Recommendation. See Dkt. #94. The

Court writes this opinion to address and adopt Judge Arnold’s recommendation for a vexatious

litigant order with pre-filing restrictions in accordance with the Ninth Circuit’s guidelines set

forth in De Long v. Hennessey, 912 F.2d 1144 (9th Cir. 1990).

B. Analysis 

“District courts have the inherent power to file restrictive pre-filing orders against

vexatious litigants with abusive and lengthy histories of litigation. Such pre-filing orders may

enjoin the litigant from filing further actions or papers unless he or she first meets certain

requirements, such as obtaining leave of the court or filing declarations that support the merits of

the case. ” Weissman v. Quail Lodge Inc., 179 F.3d 1194, 1197 (9th Cir. 1999) (internal

citation omitted).

1. Vexatious Litigant Pre-Filing Restriction Standard

In De Long, the Ninth Circuit established a four-part guideline for district courts to

follow in restricting a plaintiff’s future filings through a “vexatious litigant order”: (1) the

plaintiff must be “provided with an opportunity to oppose the order before it [is] entered”; (2)

the court must “create an adequate record for review”; (3) the court must make “substantive

findings as to the frivolous or harassing nature of the litigant’s actions”; and (4) the order “must

be narrowly tailored to closely fit the specific vice encountered.” De Long, 912 F.2d at 1147-

48.

a. Notice

In this case, plaintiff has been given notice and ample opportunity to oppose the pre-filing

restriction. Judge Arnold’s Report and Recommendation was filed on October 13, 2006, and

was set for consideration for November 3, 2006. See Dkt. #75. On October 20, 2006, plaintiff

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1

 Judge Arnold, however, found and concluded that “[p]ictures of young boys without shirts and

one picture of a woman without a top on were discovered” in addition to “software that allowed him to

erase data on his computer. Residents in the Special Commitment Center are not allowed pictures of this

nature or software that allows them to delete data from their computers.” See Dkt. #75 (Report and

Recommendation) at 5.

2

 The entire text of this third response to the Report and Recommendation states: “One fact not

mentioned for good reason is all the images where [sic] sent to me by either the state prosecutor or my

former lawyers, because I am pro se. The superior [sic] [court] ruled I must be given all discovery. The

imagines [sic] the state sent were captured of [sic] the internet, as were my attorneys [sic] images. All

these were sent on floppies or discs and inspected by the mail room staff and the SCC investigator or

computer staff (joel [sic] Eussan[)].” See Dkt. #88 (Response to response: Objection to R&R) at 1.

ORDER ADOPTING REPORT AND RECOMMENDATION

AND ORDER RESTRICTING FUTURE

IN FORMA PAUPERIS FILINGS -3-

filed his “Response to R&R.” See Dkt. #78. The entire text of plaintiff’s objection to the

Report and Recommendation states: “We object and submitt [sic] exhibit 1 the forensic

inspection* of our computer. This court was lied to and and [sic] choose [sic] to believe that lie. 

Shame on it,” with the footnote, “*IT found no nudes at all!”1

 In a second response to the

Report and Recommendation, on October 30, 2006, plaintiff filed a “Supplement New

Discovery Exhibit in Response to R&R.” See Dkt. #81. This filing did not substantively

respond to the Report and Recommendation, it simply enclosed a supplemental exhibit. Id. On

November 8, 2006, plaintiff responded again to the Report and Recommendation by filing his

“Response to response: Objection to R&R.” See Dkt. #88.2

 Plaintiff filed a fourth response to

the Report and Recommendation on December 19, 2006 by submitting his “Supplement New

Exhibit in Response to R&R.” See Dkt. #89. Again, this filing did not substantively respond to

the Report and Recommendation, it simply enclosed a supplemental exhibit.

The Ninth Circuit’s guideline that the plaintiff be “provided with an opportunity to

oppose the order before it [is] entered” has been satisfied in this case because the Court has

given plaintiff four months to oppose Judge Arnold’s recommendation restricting plaintiff’s

future in forma pauperis filings, and plaintiff has submitted four filings in response. See Dkt.

##78, 81, 88, 89. Despite plaintiff’s four responses to the Report and Recommendation, plaintiff

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has neither addressed nor opposed Judge Arnold’s pre-filing restriction recommendation.

b. Adequate Record for Review

As a part of a vexatious litigant order, the Ninth Circuit guides the district court to

provide “an adequate record for review.” De Long, 912 F.2d at 1147. “An adequate record for

review should include a listing of all the cases and motions that led the district court to conclude

that a vexatious litigant order was needed. . . . At the least, the record needs to show, in some

manner, that the litigant’s activities were numerous or abusive.” Id. (citing Wood v. Santa

Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1523, 1526 (9th Cir. 1983) (35 related

complaints filed) and In re Oliver, 682 F.2d 443, 444 (3d Cir. 1982) (over 50 frivolous cases

filed)). 

As the table below illustrates, plaintiff’s litigation activities have been numerous. 

Plaintiff has filed 45 actions in this district, and 33 of these actions have been filed within the

past 3 years. Of the 45 actions, only 3 cases including the above-captioned matter remain

pending. The other actions were dismissed or not permitted to proceed. As the table below also

demonstrates, plaintiff is not unfamiliar to the Ninth Circuit Court of Appeals.

45 Actions Filed by Richard Roy Scott in the Western District of Washington:

Parties Cause No. Disposition

1. Scott v. Reardon, et al. CV86-896-CRD-PKS Dismissed on July 28, 1989 (Dkt. #290). 

Appeal (CCA#89-35559) dismissed on

March 18, 1991 (Dkt. #295).

2. Scott v. Indeterminate

Sentence Review Bd., et

al.

CV88-592-RJB Dismissed on December 17, 1991 (Dkt.

#127). Appeal (CCA#92-35052)

dismissed on January 7, 1993 (Dkt.

#149).

3. Scott v. Riveland, et al. CV88-638-RJB Dismissed by stipulation on September

25, 1991 (Dkt. #147).

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4. Scott v. State of

Washington, et al.

CV90-5364-RJB-FDB Dismissed through consolidation with

CV88-592 (Dkt. #18) on December 4,

1990.

5. Scott v. Gier, et al. CV92-5152-RJB Dismissed on June 1, 1993 (Dkt. #105).

Appeal (CCA#93-35565) dismissed on

July 6, 1993 (Dkt. #121); affirmed on

September 2, 1994 (Dkt. #127)

(CCA#93-35629).

6. Scott, et al. v. Peterson, et

al.

CV92-5232-RJB Dismissed on June 5, 1996 (Dkt. #475). 

Judgment entered on acceptance of offer

of judgment (Dkt. #364, #424).

7. Scott, et al. v. Peterson, et

al.

CV92-5275-RJB Dismissed through consolidation with

CV92-5232 (Dkt. #63) on June 10, 1993.

8. Scott v. Vail, et al. CV93-5266-RJB-FDB Dismissed through consolidation with

CV92-5232 (Dkt. #26) on September 29,

1993.

9. Scott v. Geier, et al. CV93-5443-RJB Dismissed on October 23, 1994 (Dkt.

#191).

10. Scott, et al. v. Locke, et

al.

CV03-5057-RJB Dismissed for failure to state a claim on

April 15, 2003 (Dkt. #15).

11. Scott v. Lehman, et al. CV03-5099-FDB Dismissed on December 22, 2003 (Dkt.

#158) for failure to state a claim. Appeal

dismissed (CCA#04-35065) on June 28,

2004 (Dkt. #176).

12. Scott v. Seling, et al. CV03-5398-RBL Dismissed on May 17, 2006 (Dkt. #227). 

Appeal (CCA#06-35514) pending (Dkt.

#237).

13. Scott v. Blackman, et al. CV04-5027-RJB Dismissed by stipulation on October 14,

2004 (Dkt. #45). Appeal (CCA#04-

36119) dismissed on January 21, 2005

(Dkt. #65).

14. Scott v. Seling, et al. CV04-5147-RJB Dismissed on December 3, 2004 (Dkt.

#149). Appeal (CCA#05-35036)

pending (Dkt. #190).

15. Scott v. Sultemeier, et al. CV04-5365-RJB Dismissed by stipulation on February 2,

2005 (Dkt. #111). Appeal dismissed

(CCA#04-36026) on February 18, 2005

(Dkt. #114).

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16. Scott, et al. v. Lehman CV04-5505-FDB Dismissed on September 1, 2004 under

Fed. R. Civ. P. 41 (Dkt. #8). Appeal

dismissed (CCA#05-35399) on Oct. 3,

2005 (Dkt. #20).

17. Scott v. Lehman, et al. CV04-5521-FDB Dismissed by sanction (Dkt. #80) on

April 5, 2005. Appeal dismissed

(CCA#05-35397) on October 3, 2005

(Dkt. #93).

18. Scott v. Denny, et al. CV04-5574-RBL Dismissed by sanction (Dkt. #76) on

April 5, 2005. Appeal (CCA#05-35414)

pending (Dkt. #88).

19. Scott v. Richards, et al. CV04-5582-RBL Dismissed by sanction (Dkt. #100) on

April 5, 2005.

20. Scott v. Diaz CV04-5598-RBL Dismissed by sanction (Dkt. #42) on

April 5, 2005. Appeal (CCA#05-35405)

pending (Dkt. #54).

21. Scott v. State of

Washington

CV04-5707-RBL Dismissed by sanction (Dkt. #24) on

April 5, 2005. Appeal dismissed

(CCA#05-35411) on October 3, 2005

(Dkt. #33).

22. Scott v. County of Pacific,

et al.

CV04-5813-RJB Dismissed under Fed. R. Civ. P. 41 (Dkt.

#28) on April 5, 2005. Appeal dismissed

(CCA#05-35400) on October 3, 2005

(Dkt. #37).

23. Scott v. Seling, et al. CV04-5823-RBL Dismissed on February, 3, 2005 (Dkt.

#20). Appeal (CCA#05-35401)

dismissed on October 3, 2005 (Dkt. #33).

24. Scott v. State of

Washington

CV04-5896-RBL Dismissed by sanction (Dkt. #12) on

April 5, 2005. Appeal (CCA#05-35404)

dismissed on October 3, 2005.

25. Scott v. Pacific County, et

al.

CV05-5711-RBL Dismissed on Oct. 4, 2006 (Dkt. #62). 

Appeal (CCA#06-80100) not permitted

to proceed because it lacked merit (Dkt.

#69).

26. Scott v. Seling, et al. CV05-5760-RJB Dismissed on March 2, 2006 (Dkt. #17). 

Appeal (CCA#06-35202) dismissed on

October 10, 2006 (Dkt. #28).

27. Scott v. State of

Washington

CV06-462-JCC Dismissed on January 4, 2007 (Dkt. #28).

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28. Scott v. King County CV06-731-TSZ-JPD Pending. Appeal (CCA#06-35749)

dismissed on November 17, 2006 (Dkt.

#27).

29. Scott v. Hackett CV06-909-TSZ Dismissed for failure to state a claim on

December 14, 2006 (Dkt. #19). Appeal

(CCA#06-80100) not permitted to

proceed on March 1, 2007 because it

lacked merit (Dkt. #23).

30. Scott v. King County CV06-910-RSL-MAT Dismissed on December 1, 2006 (Dkt.

#12).

31. Scott v. Davis CV06-1052-MJP-JPD Pending. On February 6, 2007, plaintiff

filed Fed. R. Civ. P. 41 motion for

voluntary dismissal (Dkt. #16).

32. Scott v. Weinberg, et al. CV06-5172-FDB Stayed pending the outcome of this

Order (Dkt. #94).

33. Scott v. Bailey CV06-5173-RBL Dismissed on February 22, 2007 (Dkt.

#69).

34. Scott v. Nerio, et al. CV06-5340-RJB-JKA Pending.

35. Scott v. Special

Commitment Center, et al.

CV06-5359-RBL Dismissed on December 21, 2006 (Dkt.

#6).

36. Scott v. Anderson, et al. CV06-5412-FDB Dismissed on November 17, 2006 (Dkt.

#13).

37. Scott v. Judicial Dispute

Resolution, et al.

CV06-5611-RBL Dismissed on December 21, 2006 (Dkt.

#9).

38. Scott v. Hackett, et al. CV06-5612-FDB Dismissed on December 22, 2006 (Dkt.

#9).

39. Scott v. Brown, et al. CV06-5613-RBL Dismissed on December 21, 2006 (Dkt.

#9).

40. Scott v. Denny CV06-5614-FDB Dismissed on November 27, 2006 (Dkt.

#10).

41. Scott v. State of

Washington

MC05-5029-RSL

(Dkt. #8)

Not permitted to proceed under the

Court’s April 5, 2005 Order (Dkt. #11). 

Appeal (CCA#06-35039) dismissed on

January 31, 2006. Failed to verify that

issues had not been previously litigated

(Dkt. #22).

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42. Scott v. State of

Washington

MC05-5029-RSL

(Dkt. #19)

Not permitted to proceed under the

Court’s April 5, 2005 Order (Dkt. #82). 

Failed to verify that issues had not been

previously litigated.

43. Scott v. Richards MC05-5029-RSL

(Dkt. #27)

Not permitted to proceed under the

Court’s April 5, 2005 Order (Dkt. #33). 

Appeal (CCA#06-35239) dismissed on

April 11, 2006 because it raised

previously litigated issues (Dkt. #57).

44. Scott v. Diaz MC05-5029-RSL

(Dkt. #39)

Not permitted to proceed under the

Court’s April 5, 2005 Order (Dkt. #42). 

Raised previously litigated issues.

45. Scott v. Cunningham, et

al.

MC05-5029-RSL

(Dkt. #50)

Not permitted to proceed under the

Court’s April 5, 2005 Order (Dkt. #54). 

Raised previously litigated issues.

Not only has plaintiff filed numerous actions in this district as listed above, but his filings

are so numerous, repetitive, and abusive that a vexatious litigant order is justified. Judge

Arnold’s Report and Recommendation outlines the numerous and repetitive motions filed in this

case, including plaintiff’s 17 motions filed in July and August of 2006:

On September 14th , 2006, the court found it necessary to stay this action. (Dkt.

#62). In July 2006, plaintiff filed six repetitive motions for injunctive relief. (Dkt.

# 21, 24, 25, 26, 27, and 28). In August of 2006 the court called for a response

from the defendants (Dkt. # 38). Plaintiff had filed a total of eleven more motions

by the time the court stayed the action, bringing his total number of pending

motions to seventeen. Plaintiff’s multiple filings made the case difficult to manage

and were filed at a time when defense counsel was under a court ordered deadline

to file a response regarding the first six motions for injunctive relief.

See Dkt. #75 at 2. Additionally, plaintiff’s numerous, frivolous, and abusive motions in cause

numbers: C04-5147, C04-5521, C04-5365, C04-5574, C04-5582, C04-5598, C04-5707, C04-

5813, C04-5823, C04-5896 and C04-5505, are described in detail in the March 1, 2005 Report

and Recommendation. See Dkt. #169 (Report and Recommendation) in C04-5147. The

findings entered in the March 1, 2005 Report and Recommendation, as adopted by the April 5,

2005 “Order Adopting Report and Recommendation,” are also incorporated here in support of

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this vexatious litigant order. See Dkt. #170 (Order Adopting Report and Recommendation) in

C04-5147.

c. Findings of Frivolousness or Harassment

“[B]efore a district court issues a pre-filing injunction against a pro se litigant, it is

incumbent upon the court to make ‘substantive findings as to the frivolous or harassing nature of

the litigant’s actions.’ To make such a finding, the district court needs to look at ‘both the

number and content of the filings as indicia’ of the frivolousness of the litigant’s claims.” De

Long, 912 F.2d at 1148 (quoting In re Powell, 851 F.2d 427, 431 (D.C. Cir. 1988)) (internal

citation omitted). 

The frivolous and harassing nature of Richard Roy Scott’s actions have been extensively

catalogued in Judge Arnold’s Report and Recommendation (Dkt. #75) and the March 1, 2005

Report and Recommendation entered in C04-5147 as adopted by the April 5, 2005 “Order

Adopting Report and Recommendation.” See Dkt. ##169, 170 in C04-5147. In the interest of

judicial economy, the Court incorporates these previous findings here. 

Additionally, the Court finds that the number of complaints filed by plaintiff is inordinate

as detailed in section II.B.1.b above and justifies the recommended pre-filing restriction. See

Demos v. United States Dist. Court for the Eastern Dist. of Wash., 925 F.2d 1160, 1161 (9th

Cir. 1991) (holding that petitioner had abused his privilege of filing petitions in forma pauperis

in the Ninth Circuit based on the filing of 24 petitions); De Long, 912 F.2d at 1148 (“[E]ven if

De Long’s habeas petition is frivolous, the court did not make a finding that the number of

complaints was inordinate.”). Although a pre-filing injunction may not issue only on a showing

of litigiousness, an injunction here is justified given that plaintiff’s filings have largely been

without merit. See Moy v. United States, 906 F.2d 467, 470 (9th Cir. 1990) (“An injunction

cannot issue merely upon a showing of litigiousness. The plaintiff’s claims must not only be

numerous, but also be patently without merit.”) (citing In re Oliver, 682 F.2d 443, 446 (3d Cir.

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 While it is true that three of plaintiff’s actions were dismissed by stipulation after entry of a

settlement agreement, plaintiff did not prevail for any purpose in the actions as the settlement agreements

expressly state. See Dkt. #108-2 in CV04-5365 at ¶9 (“The parties agree that neither party is to be

considered a prevailing party in this action for any purpose”). And Scott v. Peterson, et al. (CV92-5232)

was resolved by plaintiff’s acceptance of defendants’ $500 offer of judgment under Fed. R. Civ. P. 68. 

See Dkt. #364, #424.

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1982)). In this case, like the actions in Oliver, plaintiff’s cases have in large part been patently

without merit. In none of plaintiff’s 45 actions has he stated a claim sufficient to require a trial

on the merits.3

 See Oliver, 682 F.2d at 446 (“The record suggests that Oliver’s claims have been

not only numerous but patently without merit – none has yet stated a claim sufficient to require a

hearing.”).

Finally, the Court finds that plaintiff’s claims show a pattern of harassment warranting

entry of the recommended pre-filing restriction. See De Long, 912 F.2d at 1148 (“An alternative

to the finding of frivolousness is the finding that De Long’s claims show a pattern of

harassment.”). Throughout plaintiff’s actions, he has harassed the court and its officers,

including: district court judges, magistrate judges, law clerks, staff, and defense counsel. See,

e.g., Dkt. #78 (magistrate judge); Dkt. #10 (magistrate judge), Dkt. #22 (defense counsel), and

Dkt. #140 (law clerk) in C04-5147; Dkt. #38, Ex. 2 in C04-5574 (defense counsel). Plaintiff has

attempted to clog the court’s docket by encouraging fellow Special Commitment Center

residents to spawn repetitive litigation and avoid consolidation. See Dkt. #29-3 in C04-5582

(stating in part “At this point joinder or consolidation of the suits will not be asked for. I want

them (The SCC AAG’s [Assistant Attorneys General]) to answer 20-30 times. And respond

alike [sic] number of times to discovery request [sic]. That will encourage SCC to offer a proper

settlement. Even so the court may try to consolidated [sic] these identical claims from the get

go. Or SCC may move for consolidation. We’ll oppose same, as long as possible. As with [sic]

appointment of an attorney. Attorney’s [sic] tend to go for a fast cash out[.]”) (emphasis added). 

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Plaintiff has also harassed opposing parties in his lawsuits. For instance, in Scott v.

Richards, et al., plaintiff requested admissions from defendants such as: “I am short and very

much overweight, so I like to throw my weight around weaker people” and “I tortured little

helpless animals when I was younger.” See Dkt. #29-2 in CV04-5582 at 2-3. Plaintiff also

sends harassing letters to defendants in his cases. See, e.g., id. at 10 (“Denny, I received you

[sic] lying bull this AM. I was hoping you’d changed. Shame on you! I’ve been patient but no

more. A triple curse and welcome to the defendants [sic] circle.”). In Scott v. Nerio, et al.,

plaintiff submitted harassing written deposition questions to the defendants. See, e.g., Dkt. #42-

2 in C06-5340 at 6 (“Do you read magizines [sic]? Like Newsweek? Aren;t [sic] there in fact

often frontal nudes of little boys often?”); id. at 2, 6, 8, 10 (asking party deponents whether they

have any underage children or grandchildren). Accordingly, the Court finds that plaintiff’s

activities demonstrate a pattern of harassment justifying entry of the recommend restriction on

plaintiff’s in forma pauperis filings.

d. Breadth of the Order

Pre-filing restrictive orders are permitted if the order is “narrowly tailored to closely fit

the specific vice encountered.” De Long, 912 F.2d at 1148. Here, the pre-filing restriction is

narrowly tailored to fit plaintiff’s specific practices. In the court’s previous attempt to curb

plaintiff’s frivolous, duplicative, and harassing litigation practices, the April 5, 2005 order

required, in part, that:

(1) . . . plaintiff shall submit a signed affidavit, along with the proposed complaint,

verifying under penalty of perjury that none of the issues raised in the proposed

complaint have been litigated in the past by the plaintiff. . . (6) Plaintiff is

prohibited from filing any duplicative or repetitive motion in an action. . . . (7)

Plaintiff shall not file a motion for reconsideration without making a specific

showing that the motion meets the criteria set forth in the local rules for filing such

a motion.

Dkt. #169 in CV04-5147 at 24. The court entered this order “as a result of the disregard

plaintiff has shown for the Federal Rules of Civil Procedure, for the local rules of this court, and

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 The Court notes, however, that plaintiff has sustained at least three dismissals satisfying the

definition of a “strike” under § 1915(g). See 28 U.S.C. § 1915(g) (defining a strike as dismissal of an

action or appeal on grounds that it is “frivolous, malicious, or fails to state a claim upon which relief my

be granted”); Scott, et al. v. Locke, et al. (CV03-5057) (dismissed for failure to state a claim with the

court’s finding that the dismissal counted as a strike under § 1915(g) (Dkt. #15)); Scott v. Lehman, et al.

(CV03-5099) (dismissed for failure to state a claim); Scott v. Hackett (CV06-909) (dismissed for failure

ORDER ADOPTING REPORT AND RECOMMENDATION

AND ORDER RESTRICTING FUTURE

IN FORMA PAUPERIS FILINGS -12-

for the contempt he has shown for the authority of the tribunal as evidenced in his violations of

the case management order, his inappropriate demeanor to the court, court staff, and opposing

parties.” Id. at 25. Despite this order, plaintiff filed five new actions in which he failed to

verify that the issues had not been previously litigated. See MC05-5029 (Dkt. ##8, 19, 27, 39,

and 50). And, undeterred by the court’s April 5, 2005, order, as described in the Report and

Recommendation (Dkt. #75), plaintiff continued his frivolous litigation practices in this case,

including filing 10 repetitive motions for injunctive relief (Dkt. ## 21, 24, 25, 26, 27, 28, 47, 48,

58, and 61), and three noncompliant motions for reconsideration. See Dkt. #75 at 2, 4. 

Limiting plaintiff’s in forma pauperis filings to situations where plaintiff is under

imminent danger of serious physical injury is consistent with the pre-filing requirements

authorized by 28 U.S.C. § 1915. The Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §

1915(g) provides that:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil

action or proceeding under this section [proceedings in forma pauperis] if the

prisoner has, on 3 or more prior occasions, while incarcerated or detained in any

facility, brought an action or appeal in a court of the United States that was

dismissed on the grounds that it is frivolous, malicious, or fails to state a claim

upon which relief may be granted, unless the prisoner is under imminent danger of

serious physical injury.

Given the Ninth Circuit’s opinion in Page v. Torrey, 201 F.3d 1136 (9th Cir. 2000),

holding that a plaintiff civilly committed under California’s Sexually Violent Predators Act was

not a “prisoner” under the PLRA, the Court does not apply 1915(g)’s “three-strikes” provision to

plaintiff.4

 Instead, the Court here follows De Long’s vexatious litigant order guidelines in

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to state a claim).

5

 See Abdul-Akbar v. McKelvie, 239 F.3d 307, 318 n.3 (3d Cir. 2001) (examining the legislative

purpose behind 28 U.S.C. § 1915(g): “[P]risoners have very little incentive not to file nonmeritorious

lawsuits. Unlike other prospective litigants who seek poor person status, prisoners have all the

necessities of life supplied, including the materials required to bring their lawsuits. For a prisoner who

qualifies for poor person status, there is no cost to bring a suit, and, therefore, no incentive to limit suits

to cases that have some chance of success. The filing fee is small enough not to deter a prisoner with a

meritorious claim, yet large enough to deter frivolous claims and multiple filings. 141 Cong. Rec. S7498-

01, S7526 (daily ed. May 25, 1995) (statement of Sen. Kyl).”).

6

 See Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (“Section 1915(g) does not

prohibit prisoners from accessing the courts to protect their rights. Inmates are still able to file claims –

they are only required to pay for filing those claims. In reaching our conclusion, we recognize that some

prisoners may be unable to prepay filing fees, and will thereby be unable to bring their actions

immediately. However, non-prisoners face similar concerns. Some prisoners will be required to save

money in order to prepay a filing fee and bring a claim. Again, non-prisoners face that same situation. 

Section 1915(g) does require prisoners to be fiscally responsible and make decisions concerning the

merits of their case.”). 

ORDER ADOPTING REPORT AND RECOMMENDATION

AND ORDER RESTRICTING FUTURE

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entering the pre-filing restriction. The Court, however, concludes that the policy objectives

underlying the PLRA are applicable to plaintiff’s circumstance,5

 and accordingly, the Court

finds that 28 U.S.C. § 1915(g)’s pre-filing restriction is reasonable to enter in this case. 

Furthermore, like 28 U.S.C. § 1915(g)’s filing limitation, the pre-filing restriction

recommended in this case does not prohibit plaintiff from accessing the court to protect his

rights if he pays the filing fee.6

 It only prevents plaintiff, with a history of abusing the legal

system, from continuing to enjoy his in forma pauperis status. Plaintiff has previously provided

the Court with submissions showing that he, at times, receives a monthly income. See, e.g., Dkt.

#6 in CV06-462 (IFP Application) (stating that he receives a “$50 draft a month” as “Director

WMPS Inc. a non-profit chairity [sic]”); Dkt. #1 in CV03-5398 (IFP Application) (stating that

he receives “10 bucks a month from sister”). While one of plaintiff’s latest statements from his

Special Commitment Center account shows a positive balance of only $10.72, the statement also

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7

 Plaintiff has previously argued that requiring payment of filing fees would “deprive me of my

pop, coffee, and hygeine [sic] supplies,” and prevent him from “buy[ing] at Albertsons or outside

vendors; things like computer printing paper and ink . . . snacks, CDs, Videos, pop or juice, hobby

supplies . . . xmas presents and birthday cards and gifts.” See Dkt. #11 (Objections to R&R re: I.F.P) in

CV04-5707 at 1-3. Contrary to plaintiff’s assertions, however, he does not have a constitutional right to

in forma pauperis status so that he can maintain his “expendable” income. Id. at 1 (“I do not have an

expendable $150 so how can I pay $150.”); Rodriguez, 169 F.3d at 1180 (“[W]e note that IFP status is

not a constitutional right.”). 

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shows that over time, plaintiff has had a cash inflow of $1,705.23. See Dkt. #13 in CV06-731 at

3. Given the fact that plaintiff has shown that he periodically receives a monthly income, the

Court’s filing restriction is narrow because it requires only that plaintiff be fiscally responsible

and save enough for a filing fee if he wants to initiate another lawsuit.7

 If plaintiff is “unwilling

to save [his] money and prepay filing fees, such a decision may be a good indicator of the merits

of the case.” Rodriguez, 169 F.3d at 1180.

Finally, the Court adopts entry of the recommended pre-filing restriction because it

comports with the Court’s obligation to conserve judicial resources. See O’Loughlin v. Doe,

920 F.2d 614, 618 (9th Cir. 1990) (“[W]e emphasize that [district courts] also bear an

affirmative obligation to ensure that judicial resources are not needlessly squandered on repeated

attempts to misuse the courts. Frivolous and harassing claims crowd out legitimate ones and

need not be tolerated repeatedly by the district courts.”); In re Sindram, 498 U.S. 177, 179-80

(1991) (“The goal of fairly dispensing justice . . . is compromised when the Court is forced to

devote its limited resources to the processing of repetitive and frivolous requests. Pro se

petitioners have a greater capacity than most to disrupt the fair allocation of judicial resources

because they are not subject to the financial considerations – filing fees and attorney’s fees –

that deter other litigants from filing frivolous petitions. . . . [T]he Court has a duty to deny in

forma pauperis status to those individuals who have abused the system.”).

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 III. CONCLUSION

Having reviewed the Report and Recommendation of the Honorable J. Kelley Arnold,

United States Magistrate Judge, plaintiff’s objections thereto, defendants’ responses, the

remainder of the record, and Richard Roy Scott’s other filings in this district, IT IS ORDERED:

1. The Court adopts the Report and Recommendation (Dkt. #75);

2. This action is DISMISSED under Fed. R. Civ. P. 11 and 28 U.S.C. §

1915(e)(2)(B)(i) as malicious, and the Clerk of Court is directed to enter judgment

in favor of defendants and against plaintiff;

3. Plaintiff is DECLARED a vexatious litigant and is PROHIBITED from proceeding

in forma pauperis in any future action in the United States District Court for the

Western District of Washington, including actions filed in state court and

transferred to the Western District of Washington, unless the Court determines that

he is in imminent danger of death or serious injury. This order shall continue in

force until abated by the Court. 

4. The Clerk of Court is directed to docket any future motions by Richard Roy Scott

for leave to proceed in forma pauperis in case number MC05-5029 for review by

the Court consistent with the pre-filing restriction of this Order.

DATED this 26th day of March, 2007.

A

Robert S. Lasnik

United States District Judge 

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