United States District Court, D. Hawaii
ORDER DENYING IN FORMA PAUPERIS APPLICATION AND
Derrick K. Watson United States District Judge
the court is pro se Plaintiff Thad Thompson's prisoner
civil rights Complaint and in forma pauperis
(“IFP”) application. ECF Nos. 1, 2. Thompson
alleges that nursing staff at the Halawa Correctional
Facility (“HCF”) have violated his constitutional
rights and state law by providing him inadequate medical care
since approximately September 2015.
following reasons, Thompson's IFP application is DENIED
pursuant to 28 U.S.C. § 1915(g) and this action is
DISMISSED without prejudice.
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 for failure to state a
claim on which relief may be granted.
has filed three federal civil actions while imprisoned that
were dismissed for failure to state a claim. See
http://pacer.psc.uscourts.gov, PACER Case Locator (last
visited Mar. 15, 2018); see also Andrews v. King,
398 F.3d 1113, 1120-21 (9th Cir. 2005) (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”). He has therefore accrued
“3-strikes” under the statute.
only exception to § 1915(g)'s three-strikes bar is
if the pleadings show that plaintiff was in imminent danger
of serious physical injury when he filed the complaint. 28
U.S.C. § 1915(g). Thompson may not proceed IFP unless
his “complaint makes a plausible allegation that [he]
faced ‘imminent danger of serious physical injury'
at the time of filing” his Complaint. Andrews v.
Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007).
incidents form the bases of Thompson's claims. First,
Thompson alleges that he was assaulted by a guard on intake
at the Oahu Community Correctional Center
(“OCCC”) on September 2, 2014 before he
transferred to HCF. Compl., ECF No.1, PageID #10, ¶ 16.
Thompson alleges that his lower back was injured during this
assault and alleges that since he transferred to HCF in
August 2015, Nurses Vilma, Rissa, and Holly “whine and
complain” when he asks to see a medical provider.
Id. at ¶ 17. He concedes that they schedule him
for appointments, but complains that it “take[s] too
long” to be seen, the medical providers are
“inadequate, ” and they are often confused why
they are seeing him. Id. Thompson has filed suit
regarding this assault. See Thompson v. Afamasaga,
1:16-cv-00128-JMS-KSC (D. Haw. Mar. 21, 2017). Although he
commenced the action pro se, Thompson is now represented by
John Rapp, Esq. Trial is to commence on May 6, 2018.
Thompson states that he had a panic attack and respiratory
distress on November 22, 2017. Thompson was immediately taken
to the medical unit and treated by Dr. Toyama. Dr. Toyama
prescribed Thompson antibiotics and nebulizer “up-draft
treatments” three times per day “as needed”
for ninety days. Id., PageID #8, ¶¶ 4-5.
Dr. Toyama also gave Thompson a personal inhaler and
recommended that he be “evaluated every morning”
to determine whether nebulizer treatments were needed.
Id., ¶ 5. Thompson was transferred to the High
Special Housing Unit (“SHU”) on December 5, 2017.
He says that he began experiencing difficulty receiving
nebulizer treatments after this transfer. Id. at
December 8 and 10, 2017, Nurses Rissa and Holly refused to
provide Thompson a nebulizer treatment when he requested one.
Id., PageID # 9, ¶¶ 7, 8, 11. On December
11, 2017, however, Thompson was given a chest x-ray; two days
later he saw an unidentified doctor who “tried to
take” him off the nebulizer treatments. Id.,
¶ 12. Thompson says they “got into a big
debate” and this doctor allowed Thompson's
“as needed” prescription to stand. Id.
On December 17, 2017, and January 4, 2018, Nurse Irina denied
Thompson a nebulizer treatment. Id. at ¶ 9.
January 11, 2018, Thompson saw Defendant medical provider
“N.P. Charlotte.” Id. at ¶ 13.
Charlotte again authorized treatments only “as deemed
needed, ” clarifying that this meant by the medical
unit as determined by his blood oxygen levels and wheezing.
Id. Thompson says that he agreed with this
“change” because of the difficulties involved in
escorting him to the medical station while he was in the SHU
and the inconvenience to the nurses. Id. He asked
Charlotte for a stronger dose inhaler, but she denied this
request. Thompson admits that normally “there is not
any regular mucus and/or coughing, ” but “in
instances of heightened breathing, ” he does cough and
wheeze. Id. at ¶ 14. He says that his
“lungs just feel damaged; like they are tra[u]matized
and/or just too weak. It's like I can't do anything
without breathing difficulty.” Id.
Thompson says that he was assaulted by the HCF Swat team on
December 21, 2017, injuring his neck, left shoulder, elbow,
wrist, hand, and fingers. Id., PageID #8, ¶ 1.
Thompson complains that he was not evaluated immediately
thereafter, nor “properly dealt with nor reasonabl[y]
dealt with after the fact.” Id. Thompson told
Nurse Rissa that he was experiencing pain in his neck, wrist,
and other areas, and requested a wrist brace on January 10
and 21, and February, 2, 3, 10, and 27, 2018. Nurse Rissa