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Thompson v. Paleka

United States District Court, D. Hawaii

January 5, 2018

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

          AMENDED ORDER DENYING RENEWED IN FORMA PAUPERIS APPLICATION AND DIRECTING PAYMENT

          SUSAN OKI MOLLWAY, UNITED STATES DISTRICT JUDGE.

         The Order Denying Renewed In Forma Pauperis Application and Directing Payment filed on January 4, 2018, is amended to correct formatting anomalies that somehow appeared when the word processing form of the Order was converted to a PDF. The content of the order is unchanged.

         Before 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 injury.[1]

         For the following reasons, Plaintiff's IFP Application remains DENIED. Plaintiff is ORDERED to submit the civil filing fee within twenty-one [21] 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.

         I. PROCEDURAL HISTORY

         Plaintiff 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.

         On 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, PageID #50.[2]

         On 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.

         On December 12, 2017, the FAC was mailed to the court; it was received and filed on December 14, 2017. FAC, ECF No. 5.

         II. 28 U.S.C. § 1915(g)

         Under 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.”[3] See PACER Case Locator http://pacer.psc.uscourts.gov (last visited Dec. 24, 2017).

         There 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 at 1053.

         To 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).

         “[V]ague 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 ...


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