ORDER DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(g)
Leslie E. Kobayashi United States District Judge
Before the court is pro se Plaintiff Alden Pauline’s prisoner civil rights complaint, “Motion Requesting a Hereing [sic] for my Civil Law Suit, ” and application to proceed in forma pauperis (“IFP”). Doc. Nos. 1, 4, 5. Pauline names United States District Judge J. Michael Seabright, Assistant United States (“AUSA”) Attorney Mark Inciong, Drug Enforcement Administration (“DEA”) Agent Bert Akana, Hawaii Department of Public Safety (“DPS”) Deputy Sheriff Tommy Kong, federal criminal defendants Sheryl Reynolds, and Derek Montervon as Defendants to this suit. Pauline also refers to HCF Gang Intelligence Officer Kimo Bruhn and Lt. Luetta as defendants within the Complaint, see Doc. No. 1, PageID #2, but does not name them in the caption or explain their connection to his claims.
Pauline claims Defendants violated his rights under the Eighth and Fourteenth Amendments, the Americans With Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, et seq., and state law. See Doc. No. 1, PageID #2. He seeks an immediate hearing on his claims. Id., PageID #8; Doc. No. 4. For the following reasons, Pauline’s IFP application and Motion are DENIED, and this suit is DISMISSED without prejudice.
Pauline is incarcerated at the Halawa Correctional Facility (“HCF”). He commenced this action on March 9, 2015, the date he signed the Complaint. See Compl., Doc. No. 1 (filed Mar. 12, 2015), PageID #8. Pauline claims that he assisted Akana and Kong in arranging five “drug buys” with Reynolds and Montervon, in exchange for an agreement to transfer him to the Federal Detention Center-Honolulu (“FDC-Honolulu”), and speak on his behalf with the Hawaii Paroling Authority. Id., PageID #5-7. He alleges Akana and Kong reneged on these promises, after which HCF prison guards and inmates retaliated against him and the HPA denied him parole. He does not explain how Reynolds or Montervon violated his federal civil rights, but nonetheless includes them as Defendants.
Pauline further claims that District Judge Seabright, who is presiding over Cr. No. 14-00912 JMS, and AUSA Inciong, who is prosecuting the case, failed to reply to his letters requesting to be called as a witness to a hearing in Cr. No. 14-00912 JMS. Pauline is neither a party nor a witness in this action, but apparently sought to explain his involvement with the federal criminal charges against Reynolds and Montervon.
On the same date that Pauline signed the Complaint, the court also received a letter from Pauline dated March 2, 2015, that had been forwarded from the Hawaii Supreme Court. See In re: Pauline, Civ. No. 15-00084 SOM/KSC, Doc. No. 1. The letter is titled “Motion for the Chief Judge to Hold a Hearing Regarding His Safety.” This letter refers to Defendants Kong, Akana, Reynolds, and Montervon and the ongoing federal criminal case in Cr. No. 14-00912 JMS, and repeats Pauline’s pending claims in Civ. No. 13-00612 HG/RLP. The court opened a miscellaneous case to determine Pauline’s intent in sending this letter, Misc. No. 15-00085 SOM. On March 18, 2015, Chief United States District Judge Susan Oki Mollway held a telephonic status conference with Pauline, DPS representative Shelley Nobriga, Esq, and Deputy Attorney General Henry Kim, on the record. See Doc. No. 2. During that hearing, Pauline identified the letter he sent to the Hawaii Supreme Court as a new civil rights complaint meant to be filed in this court, and he explained the basis for his claims. Doc. No. 4. Pauline also admitted several times that he was not in imminent danger of serious physical injury when he sent the letter and had not felt endangered from Defendants, HCF officials and guards, or other inmates for several months.
Chief Judge Mollway construed Pauline’s letter as a prisoner civil rights action. See Civ. No. 15-00084 SOM/KSC Doc. No. 4. On March 24, 2015, Judge Mollway determined that Pauline has had three or more actions dismissed as frivolous, malicious, or failing to state a claim, as defined by 28 U.S.C. § 1915(g). Id., Doc. No. 6. Judge Mollway therefore held that Pauline could not proceed IFP in Civ. No. 15-00084 SOM, because he had explicitly stated on the record that he was not in imminent danger of serious physical injury when he sent his letter, and had not felt endangered by anyone since, at the latest, January 15, 2015.
II. 28 U.S.C. § 1915(g)
A prisoner may not bring a civil action or appeal a civil judgment IFP if he 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.
28 U.S.C. § 1915(g).
“[Section] 1915(g) should be used to deny a prisoner’s IFP status only when, after careful evaluation of the order dismissing an action, and other relevant information, the district court determines that the action was dismissed because it was frivolous, malicious or failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). “[D]istrict court docket records may be sufficient to show that a prior dismissal satisfies at least one of the criteria under § 1915(g) and therefore counts as a strike.” Id. at 1120. The district court may dismiss sua sponte an action that is barred by § 1915(g), after notifying the prisoner of the strikes it considers to support such a dismissal, and affording the prisoner an opportunity to be heard regarding his strikes before dismissal. See Id. at 1120. After notice, the prisoner bears the ultimate burden of persuading the court that § 1915(g) does not apply. Id. (“once a prisoner has been placed on notice of the potential disqualification under § 1915(g) by either the district court or the defendant, the prisoner bears the ultimate burden of persuading the court that § 1915(g) does not preclude IFP status”).
Pauline has had three or more prisoner actions dismissed as frivolous, malicious, or failing to state a claim. See, e.g., Pauline v. Tufono, et al., Civ. No. 08-00389 DAE/LEK (D. Haw. Aug. 29, 2008); Pauline v. Pali Momi Med. Ctr, et al., Civ. No. 08-00195 HG/KSC (D. Haw. June 3, 2008); Pauline v. Tufono, et al., Civ. No. 08-00194 JMS/BMK (D. Haw. June 18, 2008); and Pauline v. H.C.F. Adm’r, et al., Civ. No. 08-00196 SOM/LEK (D. Haw. May 7, 2008). The court has notified Pauline of his strikes many times and has informed him that he may not proceed IFP unless he is in imminent danger of serious physical injury. See, e.g., Pauline v. Mishra, et ...