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Thompson v. Paleka

United States District Court, D. Hawaii

November 13, 2017

THAD THOMPSON, #A5013250, Plaintiff,
v.
CAPT. PALEKA, et al., Defendants.

          ORDER DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING COMPLAINT

          SUSAN OKI MOLLWAY UNITED STATES DISTRICT JUDGE.

         Before the court is pro se Plaintiff Thad Thompson's prisoner civil rights Complaint and in forma pauperis application (“IFP Application”). ECF Nos. 1, 2. Thompson claims that six Halawa Correctional Facility (“HCF”) or Department of Public Safety (“DPS”) prison officials violated his rights under the Eighth Amendment.[1] For the following reasons, Thompson's IFP Application is DENIED pursuant to 28 U.S.C. § 1915(g). Thompson's Complaint is DISMISSED with leave granted to amend pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) as limited below.

         I. THOMPSON'S CLAIMS[2]

         On or about July 7 and 26, and August 27, 2017, Thompson submitted “requests” to Capt. Paleka and the HCF Maintenance Supervisor notifying them that the High Security Unit (“HSU”) shower was extremely dirty. He alleges that he received no reply. Compl., ECF No. 1, PageID #7.

         Between August 7 and 27, 2017, Thompson submitted “regular requests” to Capt. Paleka, Chief Antonio, and Warden Harrington complaining that HCF prison officials were not responding to any of his requests. Id.

         On September 2, 2017, Thompson had an “incident” at HCF that caused him lower back pain. Id. Thompson says that he submitted multiple medical requests regarding lower back and other pain relating to the incident. He does not say whether he received or was denied medical care for his back or provide any further details about this incident.

         On September 8, 2017, Thompson developed a skin rash that he attributes to the dirty HSU showers. He does not describe the rash, but fellow inmate Raymond Sargent says he had contracted the same rash a few days earlier. See Sargent Dec., ECF No. 1-1. Sargent initially thought his rash was from bugs in his cell, but now believes it was from the dirty HSU shower. Sargent was given “cream [and] pills” and a “Medical Needs Memo” that allowed him to exchange his clothes and get supplies to clean his cell. Id.

         On September 8 and 11, 2017, Thompson submitted two medical requests regarding his rash. He alleges his requests were not answered. Thompson does not, however, allege that he received no treatment for his rash.

         On September 23, 2017, Thompson requested permission to see an outside “Nerve” specialist for his back. Compl., ECF No. 1, PageID #7. He was told that he was scheduled for an appointment with a medical provider. Thompson complains that the provider was not an “Outside Specialist, ” and that he had not seen this provider as of the date that he signed the Complaint (October 10, 2017). Id.

         Thompson alleges that Defendants' actions or inactions violated his rights under the Eighth Amendment. He seeks compensatory and punitive damages, declaratory relief, and a transfer to the Federal Detention Center-Honolulu.

         II. 28 U.S.C. § 1915(g)

         Under 28 U.S.C. § 1915(g), a prisoner may not bring a civil action in federal court without first paying the filing fee, if three or more of his civil actions or appeals have been dismissed as frivolous, malicious, or failing to state a claim on which relief may be granted. There is an exception to this three-strikes rule if the plaintiff's pleadings show that he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g).

         Court records confirm that Thompson has filed three previous civil actions while imprisoned that were dismissed for failure to state a claim. See PACER Case Locator, http://pacer.psc.uscourts.gov (last visited Nov. 8, 2017); see also Andrews v. King, 398 F.3d 1113, 1120-21 (9th Cir. 2005) (“Andrews I”) (stating “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”). Those actions are: Thompson v. Dep't of Public Safety, No. 1:17-cv-00250 DKW-KJM (D. Haw. Aug. 2, 2017) (dismissed for failure to state a claim); Thompson v. Dep't of Public Safety, No. 1:17-cv-00235 LEK-KSC (D. Haw. Aug. 1, 2017) (same); and Thompson v. Burns, No. 2:13-cv-01715-PHX-SPL (D. Ariz. July 14, 2014) (same; judgment entered Sept. 4, 2014).

         The court has notified Thompson of each of these dismissals. See No. 1:17-cv-00235, Order, ECF No. 23, PageID #146 n.3 (alerting Thompson to the strike that he accrued in the District of Arizona in Thompson v. Burns, No. 2:13-cv-01715); see also Thompson v. Hamilton, No. 1:17-cv-00520 JMS-RLP (D. Haw. Oct. 27, 2017) (denying IFP and directing payment; providing copies of the three orders in which Thompson accrued strikes). Thompson may not proceed in forma pauperis in this action unless he was in imminent danger of serious physical injury when he commenced this suit. See Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (“Andrews II”) (holding that the imminent danger exception is based on the alleged conditions at the time the complaint was filed).

         Thompson provides no information from which the court can find that his rash or his lower back pain constitutes imminent danger of serious physical injury. Thompson does not allege that he is being denied treatment by any Defendant for either condition. He alleges nothing that shows there is a genuine emergency or a concrete threat of serious harm caused by either infirmity. Rather, Thompson's primary complaints are that he contracted the rash from a dirty shower, prison officials denied his request to see an outside nerve specialist for his back pain, and prison officials are not properly responding to his requests and grievances. While a court “should not conduct an overly detailed inquiry into whether a particular danger is serious enough under the serious physical injury prong, ” Andrews II, 493 F.3d at 1055, courts are not required to “blindly accept a prisoner's allegations of imminent danger, ” Taylor v. Watkins, 623 F.3d 483, 485 (7th Cir. 2010).

         Nothing within the Complaint supports an inference that Thompson is (or was) in imminent danger of serious physical injury when he filed this action. Nor has he submitted facts showing a continuing practice that injured him in the past that poses an “ongoing danger.” Andrews II, 493 F.3d at 1057. Thompson may not proceed in forma pauperis in this action; his IFP Application is DENIED.

         Of course, Thompson may be able to allege sufficient facts to meet the imminent danger of serious physical injury exception. The court will, therefore, allow him to file an amended pleading. If he successfully shows that he is entitled to § 1915(g)'s exception, the court will reconsider its decision to deny the IFP Application. In the alternative, Thompson may submit the civil filing fee. Before Thompson submits an amended pleading or payment, however, he should carefully consider the following evaluation of his claims.

         III. SCREENING

         The court must conduct a pre-answer, sua sponte screening of prisoners' pleadings pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Claims that are frivolous, malicious, fail to state a claim, or seek damages from defendants who are immune from suit must be dismissed. See Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)).

         “The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (discussing dismissal under § 1915(e)(2)); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (discussing dismissal under § 1915A(a)). Rule 12(b)(6) requires that a complaint “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

         A claim is facially plausible when the facts pled “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 677 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). A claim need not be probable, but there must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

         Leave to amend must be granted if it appears the plaintiff can correct the complaint's defects. Lopez, 203 F.3d at 1130. Dismissal without leave to amend is only appropriate when “it is clear that the complaint could not be saved by any amendment.” Sylvia Landfield Trust v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013).

         IV. ...


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