Tierney v. Hamada et al

Filing 76

ORDER REVOKING IN FORMA PAUPERIS STATUS, DENYING MOTION FOR DISCOVERY, AND DISMISSING COMPLAINT AND ACTION re 33 ; 75 - - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 9/27/12. " Normally, the court would dismiss the action without prejudice to refiling after payment of the $350.00 filing fee. Because Plaintiff also fails to state a claim, however, and in light of the court's findings herein, amendment is futile and this action is DISMISSED with prejudice. (em t, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Michael C. Tierney shall be served by first class mail at the address of record on September 28, 2012.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MICHAEL C. TIERNEY,
#A0201434,

)
)
)
Plaintiff,
)
)
vs.
)
)
FRANCIS HAMADA, et al.,
)
)
Defendants.
)
______________________________ )

NO. 1:12-cv-00117 SOM/RLP
ORDER REVOKING IN FORMA
PAUPERIS STATUS, DENYING
MOTION FOR DISCOVERY, AND
DISMISSING COMPLAINT AND
ACTION

ORDER REVOKING IN FORMA PAUPERIS STATUS, DENYING MOTION FOR
DISCOVERY, AND DISMISSING FIRST AMENDED COMPLAINT AND ACTION
Plaintiff Michael C. Tierney is a prisoner in the
custody of the Hawaii Department of Public Safety (“DPS”).1
Plaintiff is proceeding pro se and in forma pauperis (“IFP”) in
this civil rights action brought pursuant to 42 U.S.C. § 1983.
Before the court is Defendants Francis Hamada, Francis Sequeira,
and Michael Chun’s Motion to Revoke IFP Status.

ECF #33.

Plaintiff has filed an Opposition to Defendants’ Motion, ECF #40,
and Defendants have filed a Reply, ECF #73.

Because Defendants

presented evidence beyond the pleadings in opposition to
Plaintiff’s Motion for Emergency Dental Care, and in support of
their Motion to Revoke IFP Status, Plaintiff was given an
opportunity to file counter-affidavits or other contrary

1

Plaintiff is confined at the Saguaro Correctional Center
(“SCC”), located in Eloy, Arizona, but complains about the
conditions of confinement at the Oahu Community Correctional
Center (“OCCC”).

evidence.

See ECF #63.

Plaintiff filed his supplemental

Opposition on September 26, 2012.

ECF #74.

After careful consideration of the Motion, Opposition,
Reply, supplemental Opposition, the parties’ testimony, and the
entire record, the court concludes that Plaintiff may not proceed
in forma pauperis in this action.

Defendants’ Motion is GRANTED,

and Plaintiff’s in forma pauperis status is REVOKED.
Motion for Discovery, ECF #75, is DENIED.

Plaintiff’s

This action is

DISMISSED.
I. BACKGROUND AND PROCEDURAL HISTORY
Plaintiff filed this action on February 27, 2012,
claiming that OCCC dentist Dr. Francis Hamada, Warden Francis
Sequeira, and Case Manager Michael Chun had violated his
constitutional rights by allegedly denying him “adequate” dental
care and access to the courts.

See Compl., ECF #1.

On March 6,

2012, the court screened and dismissed with leave to amend
Plaintiff’s Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A(b)(1), for failure to state a claim.2

Ord., ECF #7.

Plaintiff’s IFP application was denied as incomplete and because

2

The court ruled that Plaintiff failed to allege sufficient
facts showing that (1) Dr. Hamada acted with deliberate
indifference to Plaintiff’s dental needs; (2) Sequeira or Chun
denied him access to the courts or otherwise violated the First
Amendment; and (3) Sequeira was personally involved in
Plaintiff’s claims. The court also ruled that (4) Defendants
were immune from suit for damages in their official capacities.
See Compl., ECF #1 at 6-12.
2

he failed to plausibly allege imminent danger of serious physical
injury.

See 28 U.S.C. § 1915(g).

Plaintiff was ordered to show

cause regarding his claim of imminent danger of serious physical
injury.
On March 13, 2012, Plaintiff filed a first amended
complaint (“FAC”) and a notice of appeal.

See ECF #10, #12.

The

FAC added OCCC Accountant Emy Magcalas as a defendant, but
alleged no specific claims against her.

Plaintiff sought an

order directing Magcalas to complete his IFP application.

The

FAC is otherwise indistinguishable from the original Complaint.
In the FAC, Plaintiff maintains that Dr. Hamada refuses
to provide him with “ADEQUATE” dental care, that is, refuses to
treat his teeth with the root canals and dental crowns that he
desires, and acts with deliberate indifference to his pain,
allegedly violating the Eighth Amendment.3

FAC, ECF #10 at 5.

Plaintiff says that he is in “extreme pain and his mouth is
infected and he cannot eat or digest his food properly.”

3

Id.

Plaintiff has raised similar claims alleging inadequate
dental care before and after commencing this action. See e.g.,
Tierney v. Atkins, 1:12-cv-00308 SOM (D. Haw.) (against the
Halawa Correctional Facility (“HCF”) dentist); Tierney v. Unnamed
Dentist, 1:11-cv-00369 JMS (D. Haw.) (against the HCF dentist);
Tierney v. Okamoto, 1:11-cv-00800 DAE (D. Haw.) (against the
Waiawa Correctional Facility (“WCF”) dentist); and Tierney v.
Dentist Unknown, 1:12-cv-1554-PHX (D. Ariz) (against the SCC
dentist). In each of these actions, Plaintiff demanded root
canals and crowns and private dental care.
3

The FAC provides no additional details regarding this claim.4

In

his original Complaint, however, Plaintiff stated that Dr. Hamada
examined him on February 9, 2012, took x-rays, and prescribed
antibiotics and pain pills.

See Compl., ECF #1 at 5.

On April 11, 2012, the Ninth Circuit dismissed
Plaintiff’s appeal for lack of jurisdiction.
then filed a fully completed IFP application.

ECF #21.

Plaintiff

Although Plaintiff

had accrued three strikes under 28 U.S.C. § 1915(g), the court,
noting the claims in his response to the Order to Show Cause of
extreme pain caused by the alleged denial of dental care, granted
his IFP application on May 22, 2012.

The application was granted

notwithstanding remaining doubts concerning the plausibility of
this claim of imminent danger.

ECF #28.

Before the court could screen the FAC pursuant to 28
U.S.C. § 1915A, Plaintiff filed a Motion for Emergency Dental
Treatment.

ECF #29.

Plaintiff asserted that he was “in extreme

pain and he is entitled to adequate dental care.”

Id. at 1.

Plaintiff claimed that the only dental treatment he received from
Dr. Hamada was dental x-rays on February 9, 2012.

Id.

On May 31, 2012, the court held a hearing on
Plaintiff’s Motion for Emergency Dental Treatment.

ECF #32.

Plaintiff participated by telephone. The court received exhibits

4

The FAC also realleges Plaintiff’s due process and denial
of access to the court claims against Sequeira and Chun.
4

and testimony from Plaintiff and Dr. Hamada.

At the hearing,

Plaintiff agreed to allow an oral surgeon to extract two of his
nonreparable teeth.

See id.

Defendants stated they would

facilitate an appointment as early as possible.
Defendants assert that, on June 1, 2012, the day after
this court’s evidentiary hearing, Plaintiff was seen by an oral
surgeon at the prison but refused to allow him to extract his
teeth.

In the present Motion to Revoke IFP Status, ECF #33,

Defendants argue that the evidence before the court shows that
Plaintiff was not in imminent danger of serious physical injury
when he filed this action, that his statements to the contrary
were untruthful, and that he has acted in bad faith.
II.

Id.

“THREE STRIKES PROVISION” OF 28 U.S.C. § 1915(g)
A prisoner may not bring a civil action or appeal a

civil judgment in forma pauperis if:
the prisoner has, 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, unless the prisoner is under imminent
danger of serious physical injury.
28 U.S.C. § 1915(g).
“[Section] 1915(g) should be used to deny a prisoner’s
IFP status only when, after careful evaluation of the order
dismissing an action, and other relevant information, the
district court determines that the action was dismissed because

5

it was frivolous, malicious or failed to state a claim.”

Andrews

v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (“Andrews I”).
“[D]istrict 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.”

Id. at 1120.

At least three of Plaintiff’s prior lawsuits qualify as
“strikes” under § 1915(g):
(1) Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir.
1997) (upholding three-strikes dismissal of Plaintiff’s
lawsuits, noting that prior to November 1996, “Tierney
filed six other actions, . . . which were dismissed as
frivolous or for failure to state a claim”);
(2) Tierney v. Fasi, Civ. No. 12-00148 JMS (D. Haw.
Apr. 19, 2012) (dismissing after notice pursuant to
§ 1915(g));
(3) Tierney v. United States, No. 1:11-cv-00082 HG (D.
Haw. Feb. 7, 2011) (dismissing as frivolous and finding
Plaintiff had accrued three strikes); and
(4) Tierney v. United States, No. 1:10-cv-00675 HG (D.
Haw. Dec. 1, 2010) (dismissing as frivolous and finding
Plaintiff had accrued three strikes).
Plaintiff has been given notice and an opportunity to
respond in the present action to the court’s finding that he has
accrued three strikes.

Indeed, this has been pointed out to him

on numerous other occasions.5

Therefore, Plaintiff may not bring

5

On May 3, 2012, the Ninth Circuit issued an Order to Show
Cause requiring Plaintiff to show why a prefiling order should
not issue to address Plaintiff’s “practice of burdening [the
Ninth Circuit] with meritless litigation.” See In re: Michael C.
Tierney, No. 12-80089, ECF #2. After reviewing Plaintiff’s
(continued...)
6

a civil action without complete prepayment of the $350.00 filing
fee unless he is in imminent danger of serious physical injury.
28 U.S.C. § 1915(g).
//
III.
A.

DISCUSSION

Imminent Danger Exception
To meet the “imminent danger” requirement, a claimant

must show that the “threat or prison condition [must be] real and
proximate,”

Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.

2003) (quoting Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir.
2002)), and the allegations must be “specific or credible.”
Kinnell v. Graves, 265 F.3d 1125, 1128 (10th Cir. 2001).
“[T]he availability of the [imminent danger] exception
turns on the conditions a prisoner faced at the time the
complaint was filed, not some earlier or later time.”

Andrews v.

Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (“Andrews II”).
“[T]he exception applies if the complaint makes a plausible
allegation that the prisoner faced ‘imminent danger of serious
physical injury’ at the time of filing.”

Id. at 1055.

Claims

concerning “imminent danger of serious physical injury” cannot be
triggered solely by complaints of past abuse.

See Ashley v.

Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Luedtke v. Bertrand,

5

(...continued)
response, the appellate court entered a prefiling order.
7

ECF #4.

32 F. Supp. 2d 1074, 1077 (E.D. Wis. 1999).

But alleging a

plausible, ongoing danger will also satisfy this requirement.
Andrews II at 1056 (stating, by example, that “a prisoner who
alleges that prison officials continue with a practice that has
injured him or others similarly situated in the past” satisfies
the ongoing danger standard).
B.

Plaintiff Does Not Plausibly Allege Imminent Danger
The court first notes that it initially denied

Plaintiff IFP status twice in this action, in part because
Plaintiff failed to allege imminent danger of serious physical
injury in his original Complaint.

See ECF #7 at 15.

However,

because in his response to the Order to Show Cause Plaintiff
alleged that he was in extreme pain, his mouth was infected, Dr.
Hamada was “refusing to provide [him] with ADEQUATE dental care
by failing to fix his teeth,” and he had been denied care, the
court, in an abundance of caution, eventually granted him IFP
status.

At the time, it was unclear how Plaintiff defined

“adequate” dental care or the denial of such care, although it
appeared that he simply disagreed with the care he had received.
The court then conducted a hearing on May 31, 2012, on
Plaintiff’s Motion for Emergency Dental Treatment, a motion that
required the court to determine whether Plaintiff was
sufficiently and plausibly alleging imminent danger.

8

See

generally, Tr., ECF #71.

Plaintiff clarified his situation at

the hearing.
The imminent danger exception applies “if the complaint
makes a plausible allegation that the prisoner faced ‘imminent
danger of serious physical injury’ at the time of filing.”
Andrews II, 493 F.3d at 1055 (emphasis added).

Although a court

considering an IFP application from a litigant who has accrued
three strikes “should not attempt to evaluate the seriousness of
a plaintiff’s claims[, . . . ] it has never been the rule that
courts must blindly accept a prisoner’s allegations of imminent
danger.”

Taylor v. Watkins, 623 F.3d 483, 485

(7th Cir. 2010)

(emphasis added).
At the hearing on May 31, 2012, this court received
Plaintiff’s dental records and x-rays in evidence and heard inperson testimony from Dr. Hamada and telephone testimony from
Plaintiff.

Dr. Hamada testified that he had examined Plaintiff

on February 9, 2012, and determined that Plaintiff had three
teeth that required dental care: #3, #14, and #31.
at 33-36.

Tr, ECF #71

Dr. Hamada testified that #31 was fractured but not

infected or decayed.

Id. at 35-36, 39-40.

He opined that it

might be sensitive to temperature and required a filling, but did
not require emergency treatment.

Id.

He further testified that

#3 and #14 were nonrestorable (by root canal treatment or
otherwise), had active infection, were causing Plaintiff pain,

9

and needed to be extracted.

Id. at 33-34, 41-42.

Dr. Hamada

opined that extraction would relieve Plaintiff’s pain.
42.

Id. at

Dr. Hamada stated that he had explained this to Plaintiff.
Dr. Hamada further testified that Plaintiff consented

to the extraction of teeth #3 and #14 during the appointment on
February 9, 2012, and was immediately listed to see an oral
surgeon.

Plaintiff, however, did not show up for the scheduled

appointment.

Id. at 34.

Plaintiff admitted that he knew he was scheduled to see
an oral surgeon on March 6, 2012.

Plaintiff testified, however,

that on that day he told prison personnel that he was going to
the law library and that they should notify the dental department
of this, so that someone could come to get him at the appointment
time, but no one did.6

Id. at 15.

Dr. Hamada testified that,

because the oral surgeon is at the prison infrequently, when
Plaintiff was not present at his scheduled appointment, he was
deemed to have refused care.

Id.

On May 27, 2012, Plaintiff saw Dr. Thomas Atkins, DDS,
at HCF.

See ECF #33-1 at 2.

Plaintiff’s dental treatment record

of that date shows: “Pt wishes to have fillings on non-restorable
teeth #3, 14.

Pt refuses ext. Pt informed, told to return when

he is ready for ext 3, 14.”

Id.

6

Plaintiff signed his original Complaint on February 20,
2012, after seeing Dr. Hamada on February 9, 2012, and before the
March 6, 2012, appointment with the oral surgeon.
10

At the hearing on May 31, 2012, Plaintiff testified
that the HCF and WCF dentists told him that his teeth were
restorable, but expensive to fix, and that he had to pay for
their restoration himself.

Id. at 14.

He testified that he had

been in pain for 26 months and that he either wanted his teeth
fixed or pulled.

Id. at 55.

Plaintiff seemed at the hearing

before this court to understand that teeth #3 and #14 were not,
in fact, restorable, and he consented to having them extracted.
Id. at 70-72.
The court denied Plaintiff’s Motion for Emergency
Dental Treatment, finding that there was no dental emergency, and
stating:
I am finding that what’s happened is that you were told
that these two teeth need to be pulled out. You didn’t
want them pulled out because you wanted to have root
canals and crowns, but these teeth were too
deteriorated to make [that] appropriate. And so since
you wanted something other than having the teeth pulled
out, they weren’t going to forcibly pry open your mouth
and pull out teeth if you didn’t want them pulled out.
So that’s the only reason that the teeth that are
causing you pain have not been pulled out.
. . . .
[R]ight now we have two prison dentists from different
facilities saying your two teeth . . . are too
deteriorated to get something other than just having
them pulled out.
. . . .
[The dentist and defense counsel] are on the court
record saying that they are going to make sure that you
get put in line for an appointment and that they
understand that you’re in pain and so that takes you up
in priority I’m sure. And so that an appointment to
extract [the two teeth] is forthcoming.
11

. . . .
[T]his Motion for Emergency Dental Treatment is denied.
But, [the defense attorney and dentist] are going to
arrange for you to get those two teeth extracted.
ECF #71 at 73-74, 77.
After the court ruled orally on May 31, 2012, Plaintiff
apparently decided not to have his teeth extracted.

Thus, the

next day, June 1, 2012, when Plaintiff was seen again at HCF by
Dr. Atkins, for the purpose of having teeth #3 and #14 extracted,
he inexplicably refused this treatment and refused to sign the
form acknowledging this refusal.

ECF #33-1 at 1.

To the extent

Plaintiff is suffering dental pain, he has had opportunities to
address that pain, but has declined to do so.

Plaintiff did not

keep the March 6, 2012, dental appointment to extract teeth #3
and #14, deciding instead to file suit against Dr. Hamada.
Plaintiff’s explanation for missing this appointment is not
believable; the record shows that he was informed of the
appointment well before as well as on the day it was scheduled,
but instead of waiting to be called, chose to go to the law
library.

Plaintiff cannot “create the imminent danger so as to

escape the three strikes provision of the PLRA.”

Pauline v.

Mishner, No. 1:09–cv-00182 JMS 2009 WL 1505672, *2 (D. Haw., May
28, 2009); Taylor v. Walker, 2007 WL 4365718, *2 (S.D. Ill.
2007); see also Bell v. Allen, 2007 WL 484547 (S.D. Ala. Feb.8,
2007); Muhammed v. McDonough, 2006 WL 1640128 (M.D. Fla. June 9,

12

2006); Wallace v. Cockrell, 2003 WL 22961212 (N.D. Tex. Oct.27,
2003).
Even if Plaintiff’s missing of the March 6 appointment
were excusable, it is now abundantly clear, as noted in the order
dismissing his original Complaint, that Plaintiff simply
disagreed with the dental care that Dr. Hamada provided and the
treatment Dr. Hamada and other dentists have recommended.
Differences of opinion between an inmate and a prison medical
provider do not amount to deliberate indifference.
v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004).
to state a claim against Dr. Hamada.

See Toguchi

Plaintiff fails

Because the FAC fails to

cure the deficiencies in his original Complaint as alleged
against Defendants Chun and Sequeira, Plaintiff also fails to
state a claim against them.

Finally, to the extent Plaintiff

alleges a claim against Magcalas for failing to complete his IFP
application, the court finds that he fails to state a claim
against her.
IV.

CONCLUSION

In light of the evidence before the court, as provided
by Plaintiff in his original and amended Complaint, at the May
31, 2012, hearing, and in Defendants’ exhibits to the Motion to
Revoke IFP Status, the court concludes that Plaintiff has failed
to make a plausible allegation that he was facing an imminent
danger of serious physical injury when he filed this action.
Moreover, the court finds that Plaintiff made these allegations
in bad faith, fully aware that he could alleviate his pain at any
13

time, and that Dr. Hamada was not responsible for his pain.
Finally, the court finds that the First Amended Complaint fails
to cure the deficiencies in the original Complaint and Plaintiff
fails to state a claim.
Defendants’ Motion is GRANTED, and Plaintiff’s IFP
status is REVOKED.

Normally, the court would dismiss the action

without prejudice to refiling after payment of the $350.00 filing
fee.

Because Plaintiff also fails to state a claim, however, and

in light of the court’s findings herein, amendment is futile and
this action is DISMISSED with prejudice.
Finally, Plaintiff seeks copies of dental and medical
x-rays from before and after the incident at issue in this action
and copies of court orders from several of his other cases.
Plaintiff has had the ability to obtain his own dental x-rays and
other medical records since he commenced this action.

This court

and the appellate court have also sent Plaintiff copies of each
of the orders he seeks.

Nor are these medical records or copies

of court orders relevant to whether he was in imminent danger of
serious physical injury at the time he commenced this action.
Plaintiff’s Motion for Discovery is DENIED.

14

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, September 27, 2012.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Tierney v. Hamada, et al., Civ. No. 12-00117 SOM/RLP; ORDER REVOKING IN FORMA PAUPERIS
STATUS, DENYING MOTION FOR DISCOVERY, AND DISMISSING COMPLAINT AND ACTION;
psas/IFP/dmp 2012/Tierney Revoke IFP/ Tierney 12-117 SOM (revoke IFP no imm. dng)

15