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Thompson v. Rissa

United States District Court, D. Hawaii

April 2, 2018

THAD THOMPSON, #A5013250, Plaintiff,
v.
NURSE RISSA, et al., Defendants.

          ORDER DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING ACTION

          Derrick K. Watson United States District Judge

         Before 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.[1]

         For the following reasons, Thompson's IFP application is DENIED pursuant to 28 U.S.C. § 1915(g) and this action is DISMISSED without prejudice.

         I. 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 for failure to state a claim on which relief may be granted.

         Thompson has filed three federal civil actions while imprisoned that were dismissed for failure to state a claim.[2] 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.

         The 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).

         II. THOMPSON'S CLAIMS[3]

         Three 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.

         Next, 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 ¶ 6.

         On 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.

         On January 11, 2018, Thompson saw Defendant medical provider “N.P. Charlotte.”[4] 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”[5] 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.

         Finally, 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 ...


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