United States District Court, D. Hawaii
ORDER DENYING IN FORMA PAUPERIS APPLICATION AND
OKI MOLLWAY UNITED STATES DISTRICT JUDGE.
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. 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.
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
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.
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.
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.
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.
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.
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.
28 U.S.C. § 1915(g)
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).
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).
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).
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
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.
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
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)).
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.
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.
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).