United States District Court, D. Hawaii
ORDER DENYING APPLICATION TO PROCEED IN FORMA
DERRICK K. WATSON, UNITED STATES DISTRICT JUDGE.
the court is pro se Plaintiff Thad Thompson's request to
proceed in forma pauperis (“IFP”) on
appeal. This case has not been terminated and the
Court is presently awaiting Thompson's second amended
pleading before taking further action. See ECF No.
11 (dismissing first amended complaint for failure to state a
plausible claim for relief, with leave granted to amend on or
before November 4, 2017). For the following reasons,
Thompson's request to proceed IFP on appeal is DENIED.
28 U.S.C. §
prisoner may not bring a civil action or appeal a civil
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
28 U.S.C. § 1915(g) (emphasis added).
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)
(“Andrews I”). “In some instances,
the district 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.
court has reviewed Thompson's federal court actions filed
as a prisoner and finds that he had accrued three
“strikes” under § 1915(g) before he
submitted the present application to proceed IFP on appeal:
(1) Thompson v. Dep't of Public Safety,
1:17-cv-00250 DKW-KJM (D. Haw. Aug. 2, 2017) (dismissed for
failure to state a claim);
(2) Thompson v. Dep't of Public Safety,
1:17-cv-00235 LEK-KSC (D. Haw. Aug. 1, 2017) (dismissed for
failure to state a claim); and
(3) Thompson v. Burns, 2:13-cv-01715-PHX-SPL (D.
Ariz. July 21, 2014) (dismissed for failure to state a claim;
judgment entered Sept. 4, 2014).
See PACER Case Locator
http://pacer.psc.uscourts.gov (last visited Oct. 18,
2017). The district court gave Thompson explicit notice of
his strikes when No. 1:17-cv-00235 LEK-KSC and No.
1:17-cv-00250 DKW-KJM were dismissed. The district court also
alerted Thompson to the strike that he had accrued in the
District of Arizona in 2014 in Thompson v. Burns,
No. 2:13-cv-01715, because he asserted that this case was
still pending on his complaint forms. See No.
1:17-cv-00235, Order, ECF No. 23, PageID #146 n.3. Thompson
was also recently provided copies of the orders in which his
actions were dismissed for failure to state a claim in
Thompson v. Hamilton, No. 1:17-cv-00520 JMS-RLP.
See Order Denying In Forma Pauperis Application
Pursuant to 28 U.S.C. § 1915(g), ECF No. 3 (D. Haw. Oct.
NO IMMINENT DANGER ALLEGED
[imminent danger] exception turns on the conditions a
prisoner faced at the time the complaint was filed, not some
earlier or later time.” Andrews v. Cervantes,
493 F.3d 1047, 1053 (9th Cir. 2007) (“Andrews
II”) . “[T]he exception applies if
the complaint makes a plausible allegation that the prisoner
faced ‘imminent danger of serious physical injury'
at the time of filing, ” id. at 1055, or
“prison officials continue with a practice that has
injured him or others similarly situated in the past.”
Id. at 1057. For requests to proceed IFP on appeal,
a prisoner subject to the ...