The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge
ORDER REVOKING IN FORMA PAUPERIS STATUS, DENYING MOTION FOR DISCOVERY, AND DISMISSING COMPLAINT AND ACTION
Plaintiff Michael C. Tierney is a prisoner in the custody of the Hawaii Department of Public Safety ("DPS").*fn1
Plaintiff is proceeding pro se and in forma pauperis ("IFP") in this civil rights action brought pursuant to 42 U.S.C. § 1983. Before the court is Defendants Francis Hamada, Francis Sequeira, and Michael Chun's Motion to Revoke IFP Status. ECF #33. Plaintiff has filed an Opposition to Defendants' Motion, ECF #40, and Defendants have filed a Reply, ECF #73. Because Defendants presented evidence beyond the pleadings in opposition to Plaintiff's Motion for Emergency Dental Care, and in support of their Motion to Revoke IFP Status, Plaintiff was given an opportunity to file counter-affidavits or other contrary evidence. See ECF #63. Plaintiff filed his supplemental Opposition on September 26, 2012. ECF #74.
After careful consideration of the Motion, Opposition, Reply, supplemental Opposition, the parties' testimony, and the entire record, the court concludes that Plaintiff may not proceed in forma pauperis in this action. Defendants' Motion is GRANTED, and Plaintiff's in forma pauperis status is REVOKED. Plaintiff's Motion for Discovery, ECF #75, is DENIED. This action is DISMISSED.
I. BACKGROUND AND PROCEDURAL HISTORY
Plaintiff filed this action on February 27, 2012, claiming that OCCC
dentist Dr. Francis Hamada, Warden Francis Sequeira, and Case Manager
Michael Chun had violated his constitutional rights by allegedly
denying him "adequate" dental care and access to the courts. See
Compl., ECF #1. On March 6, 2012, the court screened and dismissed
with leave to amend Plaintiff's Complaint pursuant to 28 U.S.C. §§
1915(e)(2) and 1915A(b)(1), for failure to state a claim.*fn2
Ord., ECF #7. Plaintiff's IFP application was denied as
incomplete and because
he failed to plausibly allege imminent danger of serious physical
injury. See 28 U.S.C. § 1915(g). Plaintiff was ordered to show cause
regarding his claim of imminent danger of serious physical
On March 13, 2012, Plaintiff filed a first amended complaint ("FAC") and a notice of appeal. See ECF #10, #12. The FAC added OCCC Accountant Emy Magcalas as a defendant, but alleged no specific claims against her. Plaintiff sought an order directing Magcalas to complete his IFP application. The FAC is otherwise indistinguishable from the original Complaint.
In the FAC, Plaintiff maintains that Dr. Hamada refuses to provide him with "ADEQUATE" dental care, that is, refuses to treat his teeth with the root canals and dental crowns that he desires, and acts with deliberate indifference to his pain, allegedly violating the Eighth Amendment.*fn3 FAC, ECF #10 at 5. Plaintiff says that he is in "extreme pain and his mouth is infected and he cannot eat or digest his food properly." Id.
The FAC provides no additional details regarding this claim.*fn4 In his original Complaint, however, Plaintiff stated that Dr. Hamada examined him on February 9, 2012, took x-rays, and prescribed antibiotics and pain pills. See Compl., ECF #1 at 5.
On April 11, 2012, the Ninth Circuit dismissed Plaintiff's appeal for lack of jurisdiction. ECF #21. Plaintiff then filed a fully completed IFP application. Although Plaintiff had accrued three strikes under 28 U.S.C. § 1915(g), the court, noting the claims in his response to the Order to Show Cause of extreme pain caused by the alleged denial of dental care, granted his IFP application on May 22, 2012. The application was granted notwithstanding remaining doubts concerning the plausibility of this claim of imminent danger. ECF #28.
Before the court could screen the FAC pursuant to 28 U.S.C. § 1915A, Plaintiff filed a Motion for Emergency Dental Treatment. ECF #29. Plaintiff asserted that he was "in extreme pain and he is entitled to adequate dental care." Id. at 1. Plaintiff claimed that the only dental treatment he received from Dr. Hamada was dental x-rays on February 9, 2012. Id.
On May 31, 2012, the court held a hearing on Plaintiff's Motion for Emergency Dental Treatment. ECF #32. Plaintiff participated by telephone. The court received exhibits and testimony from Plaintiff and Dr. Hamada. At the hearing, Plaintiff agreed to allow an oral surgeon to extract two of his nonreparable teeth. See id. Defendants stated they would facilitate an appointment as early as possible.
Defendants assert that, on June 1, 2012, the day after this court's evidentiary hearing, Plaintiff was seen by an oral surgeon at the prison but refused to allow him to extract his teeth. In the present Motion to Revoke IFP Status, ECF #33, Defendants argue that the evidence before the court shows that Plaintiff was not in imminent danger of serious physical injury when he filed this ...