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Thompson v. Rissa

United States District Court, D. Hawaii

June 1, 2018

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

          ORDER DENYING PETITION FOR RECONSIDERATION

          Derrick K. Watson, United States District Judge.

         Before the court is pro se Plaintiff Thad Thompson's Petition for Reconsideration to Grant Plaintiff's ‘In Forma Pauperis' (IFP) Application (“Petition”). ECF No. 5. Because more than twenty-eight days have passed since judgment was entered, the court construes Plaintiff's Petition as seeking reconsideration pursuant to Rule 60 of the Federal Rules of Civil Procedure (“FRCP”). For the following reasons, the Petition is DENIED.

         I. BACKGROUND

         On March 14, 2018, Plaintiff filed his Complaint. He alleged that Halawa Correctional Facility (“HCF”) nurses and other medical staff delayed or denied him adequate medical care since approximately September 2015. See Compl., ECF No. 1. The court reviewed its records to determine whether Plaintiff had “on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(g); see also Andrews v. King, 398 F.3d 1113, 1120-21 (9th Cir. 2005) (stating “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”). Because Plaintiff had accrued 3-strikes, [1] the court screened the Complaint to determine whether it showed that he was in imminent danger of serious physical injury when it was filed. See 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) (holding that a prisoner who has accrued three strikes 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”).

         On April 2, 2018, the court found that Plaintiff's allegations failed to show that he was in imminent danger of serious physical injury when he commenced this action, denied his IFP application, and dismissed this action without prejudice to refiling with concurrent payment of the filing fees. See Order Denying In Forma Pauperis Application and Dismissing Action (“April 2 Order”), ECF No. 3. Judgment entered that day. ECF No. 4. Plaintiff did not submit payment or file a notice of appeal.

         On May 18, 2018, Plaintiff filed the Petition. ECF No. 5. Plaintiff argues that the court misconstrued his statement of facts and asserts that he has shown imminent danger of serious physical injury.

         II. LEGAL STANDARD

         Rule 60(b) “provides for reconsideration upon a showing of (1) mistake, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied or discharged judgment; or (6) ‘extraordinary circumstances' which would justify relief.” Sch. Dist. No. 1J, Multnomah Cty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Motions for reconsideration are not a substitute for appeal and should be infrequently made and granted. See Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981); see also Grandinetti v. Hyun, 2017 WL 239741, at *1 (D. Haw. Jan. 19, 2017).

         III. DISCUSSION

         Plaintiff argues that he qualifies for § 1915(g)'s exception based on Defendants' alleged denial of adequate medical care for: (1) chronic lower back pain that he has experienced since September 2014;[2] (2) difficulty breathing since November 22, 2017;[3] and (3) pain in his neck, shoulder, elbow, wrist, hand, and fingers since December 21, 2017.[4]

         A. Chronic Lower Back Pain

         The court found that Plaintiff had seen medical providers for his back injury periodically since 2014, was receiving Ibuprofen for his pain, and had seen medical staff regularly between October 2017 and January 2018 for other issues and was able to raise his concerns regarding his back.[5] See Order, ECF No. 3, PageID #36; Compl., ECF No. 1, PageID #10-11, ¶¶ 17-18. Plaintiff's main complaint was that he had not been approved to see an outside nerve specialist for his back pain despite several requests. Consequently, the court determined that Plaintiff's chronic back pain was being addressed, was not “a real, present threat, ” and did not show a “pattern of misconduct evidencing the likelihood of imminent serious physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003).

         Plaintiff now argues that, although he has seen medical providers for his back, other inmates are often scheduled for appointments before him, and says that “the appointments I've had with providers do not properly address my issues of my wanting and needing to see a nerve specialist for my lower-back.” Pet., ECF No. 5, PageID #42. He also complains that the Ibuprofen is ineffective.

         Plaintiff provides no additional facts that show the court was mistaken regarding the degree of his injury, the treatment that he is admittedly receiving, or the basis for his claimed need to see an outside nerve specialist. These allegations do not persuade the court to reconsider its holding that ...


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