United States District Court, D. Hawaii
ORDER DENYING RENEWED IN FORMA PAUPERIS APPLICATION
AND DIRECTING PAYMENT
Oki Mollway, United States District Judge.
the court is Plaintiff's First Amended Complaint
(“FAC”) and renewed Application to Proceed In
Forma Pauperis by a Prisoner (“IFP”).
See FAC, ECF No. 5; IFP Application, ECF No. 2.
Plaintiff, a state prisoner proceeding pro se, alleges that
Halawa Correctional Facility (“HCF”) and
Department of Public Safety (“DPS”) officials
violated his constitutional rights by failing to properly
maintain the showers at the HCF High Security Unit
(“HSU”), failing to properly respond to his
complaints and grievances, and denying or delaying him
medical care for a rash and chronic back
following reasons, Plaintiff's IFP Application remains
DENIED. Plaintiff is ORDERED to submit the civil filing fee
within twenty one  days of the date of this ORDER.
Failure to timely remit the civil filing fee shall result in
automatic termination of this action without prejudice.
commenced this action between October 10 and 18, 2017, when
he signed the original Complaint and prison officials mailed
it to the court. See Douglas v. Noelle, 567 F.3d
1103, 1107 (9th Cir. 2009) (considering the postmark as the
date of filing for applying the prison mailbox rule) (citing
Houston v. Lack, 487 U.S. 266, 271 (1988) (holding
prisoner pleadings may be considered filed when they are
placed in the prison mail system). The Complaint was filed on
October 20, 2017.
October 19, 2017, Plaintiff was transferred from the HSU to
the HCF Medium Facility. See Thompson v. Borges, No.
1:17 cv 00561 LEK KJM (D. Haw. Nov. 13, 2017), ECF No. 1 2,
November 13, 2017, the court denied Plaintiff's IFP
Application because he had accrued three strikes pursuant to
28 U.S.C. § 1915(g), and alleged no plausible facts
showing that he was in imminent danger of serious physical
injury when he filed the Complaint. Order, ECF No. 4. The
court also screened the Complaint, found that it failed to
state a claim on which relief can be granted, and dismissed
it with leave granted to amend. Plaintiff was notified that,
if he filed an amended pleading that stated a claim
and alleged plausible facts showing that he was in
imminent danger of serious physical injury when it was filed,
the court would revisit his request to proceed IFP.
December 12, 2017, the FAC was mailed to the court; it was
received and filed on December 14, 2017. FAC, ECF No. 5.
28 U.S.C. § 1915(g)
28 U.S.C. § 1915(g), a prisoner may not bring an action
in federal court without first paying the civil filing fee,
if three or more of his civil actions or appeals have been
dismissed as frivolous, malicious, or for failure to state a
claim on which relief may be granted. Plaintiff does not
contest the court's finding that he has filed three civil
actions while imprisoned that were dismissed for failure to
state a claim, and that he has accrued “three
strikes.” See PACER Case Locator
http://pacer.psc.uscourts.gov (last visited Dec. 24, 2017).
is an exception to § 1915(g)'s three strikes bar if
the plaintiff “makes a plausible allegation that [he]
faced ‘imminent danger of serious physical injury'
at the time of filing.” Andrews v. Cervantes,
493 F.3d 1047, 1055 (9th Cir. 2007); see also Williams v.
Paramo, 775 F.3d 1182, 1189 (9th Cir. 2015) (holding
that a prisoner may also be required to demonstrate imminent
danger at the time the notice of appeal is filed). The
imminent danger exception “turns on the conditions a
prisoner faced at the time the complaint was filed, not at
some earlier or later time.” Andrews, 493 F.3d
qualify for § 1915(g)'s exception, the danger
alleged must be real, proximate, and/or ongoing. Id.;
Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003)
(stating, “the harm must be imminent or occurring at
the time the complaint is filed”); Blackman v.
Mjening, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016)
(“Imminent danger of serious physical injury must be a
real, present threat, not merely speculative or
hypothetical.”). A plaintiff must provide
“specific fact allegations of ongoing serious physical
injury, or a pattern of misconduct evidencing the likelihood
of imminent serious physical injury.” Martin v.
Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003); see
also Logan v. Tomer, 2017 WL 3896364, at *1 2 (E.D. Cal.
Sept. 6, 2017) (finding prisoner failed to show cause that he
was in imminent danger when he filed the complaint).
and utterly conclusory assertions” of imminent danger
are insufficient. White v. Colorado, 157 F.3d 1226,
1231 32 (10th Cir. 1998); Martin, 319 F.3d at 1050
(stating, “conclusory assertions” are
“insufficient to invoke the exception to §
1915(g)”); Pauline v. Mishner, 2009 WL
1505672, at *3 (D. Haw. May 28, 2009) (“Plaintiff's
vague and conclusory allegations of possible future harm to
himself or others are insufficient to trigger the
‘imminent danger of serious physical injury'
exception to dismissal under § 1915(g).”). The
“imminent danger” exception is available
“for genuine emergencies, ” where “time is
pressing” and “a threat . . . is real and
proximate.” Lewis v. Sullivan, 279 F.3d 526,
531 (7th Cir. 2002).
a prisoner must show a “nexus between the imminent
danger [the complaint] alleges and the claims it asserts, to
qualify for the ‘imminent danger' exception of
§ 1915(g)” and demonstrate that he has standing to
pursue his claims pursuant to the “escape hatch”
provided by the statute. Pettus v. Morgenthau, 554
F.3d 293, 29899 (2d Cir. 2009). To determine whether a nexus
exists, a court should consider “(1) whether the
imminent danger of serious physical injury that a three
strikes litigant alleges is fairly traceable to unlawful
conduct asserted in the complaint, and (2) whether a
favorable judicial outcome would redress that injury. The