Austin v. Manuma et al

Filing 5

ORDER TO SHOW CAUSE WHY PLAINTIFF SHOULD BE ALLOWED TO PROCEED IN FORMA PAUPERIS. (Show Cause Response due by 5/16/2012) Signed by JUDGE LESLIE E. KOBAYASHI on 4/25/2012. (Motions terminated: 2 MOTION for Leave to Proceed in forma pauperis filed by Gerald Lewis Austin). (afc)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). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GERALD LEWIS AUSTIN,
#A1076082,

)
)
)
Plaintiff,
)
)
vs.
)
)
CORR. SEARGENT MATTHEW MANUMA, )
)
)
Defendant.
______________________________ )

CIVIL NO. 12-00199 LEK/BMK
ORDER TO SHOW CAUSE WHY
PLAINTIFF SHOULD BE ALLOWED TO
PROCEED IN FORMA PAUPERIS

ORDER TO SHOW CAUSE WHY PLAINTIFF SHOULD
BE ALLOWED TO PROCEED IN FORMA PAUPERIS
Before the court is pro se Plaintiff Gerald Lewis
Austin’s prisoner civil rights Complaint and in forma pauperis
(“IFP”) application.

ECF #1, #2.

Although Austin names three

defendants, Adult Correctional Officer (“ACO”) Matthew Manuma,
ACO Salanoa, and inmate Bret Merchado, he clarifies that Salanoa
and Merchado are witnesses to the events at issue and the court
does not construe them as defendants.

Austin claims that Manuma

assaulted him in front of Salanoa and Merchado on May 3, 2010,
violating the Eighth Amendment.

For the following reasons,

Austin is ORDERED to show cause on or before May 16, 2012, why he
should be allowed to proceed in forma pauperis in this action.
I.
A.

DISCUSSION

28 U.S.C. § 1915(g)
A prisoner may not bring a civil action or appeal a

civil judgment under 28 U.S.C. § 1915 “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); Tierney v. Kupers, 128

F.3d 1310, 1311 (9th Cir. 1997).
The court must conduct a “careful examination of the
order dismissing an action, and other relevant information,” to
determine if the prisoner’s prior action was “dismissed because
it was frivolous, malicious or failed to state a claim.”
v. King, 398 F.3d 1113, 1121 (9th Cir. 2005).

Andrews

“[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.

The court may,

therefore, raise sua sponte the § 1915(g) problem, and the
prisoner bears the ultimate burden of persuading the court that
§ 1915(g) does not bar pauper status for him.

Id.

A review of the federal courts’ cases database,
http://pacer.psc.uscourts.gov, (“PACER”), reveals that Austin has
filed numerous civil actions as a prisoner that were dismissed as
frivolous or as failing to state a claim.1

1

Several of these

See e.g., Austin v. Kaawa, 1:10cv00693 SOM (D. Haw. Dec.
23, 2010) (frivolous and fail to state a claim); Austin v. Tyler,
1:11-cv-00692 JMS (D. Haw. Nov. 22, 2011) (fail to state claim);
2

actions explicitly informed Plaintiff that they constituted a
strike or that he had already accrued three strikes.

See

Andrews, 398 F.3d at 1120 (requiring defendants or the court to
notify a plaintiff of dismissals supporting a § 1915(g) dismissal
before granting defendants’ motion to revoke IFP and dismiss
case).
B.

Austin Fails to Allege Imminent Danger of Serious Physical
Injury
To qualify for § 1915(g)’s exception, a prisoner must

allege facts demonstrating imminent danger of serious physical
injury when he commenced the action.

See Andrews v. Cervantes,

493 F.3d 1047, 1053 (9th Cir. 2007).

Alleging a plausible,

ongoing danger can satisfy this requirement.

Id. at 1056 (citing

Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998)).
Section 1915(g)’s exception applies only “if the complaint makes
a plausible allegation that the prisoner faced ‘imminent danger
of serious physical injury’ at the time of filing.”
493 F.3d at 1055-56.

Cervantes,

A prisoner cannot meet the exception when

his claims of imminent danger are conclusory.

Id. at 1057 n.11.

Austin v. Stevens, 1:11-cv-00690 SOM (D. Haw. Nov. 23, 2011)
(frivolous and fail to state a claim); Austin v. Lau,
1:11-cv-00672 SOM (D. Haw. Nov. 30, 2011) (same); Austin v.
Momoa, 1:11-cv-00707 DAE (D. Haw. Dec. 1, 2011) (fail to state a
claim); Austin v. Mailroom, 1:11-cv-00708 JMS (D. Haw. Dec. 1,
2011) (fail to state a claim); Austin v. Padilla, 1:11-cv-00693
DAE (D. Haw. Dec. 19, 2011) (same); Austin v. Van Winkle,
1:11-cv-00691 SOM (D. Haw. Dec. 20, 2011) (frivolous and fail to
state a claim).
3

In Cervantes, the plaintiff sufficiently alleged facts indicating
that he had suffered a particular and continuing injury, that the
defendants knew of a particular harm to him, and failed to act to
address the harm, thus, qualifying for § 1915(g)’s exception to
the 3-strikes bar.2
By contrast, Austin’s allegations do not allege
imminent danger of serious harm or injury that can be attributed
to Manuma or others.

See Marshall v. Fla. Dep’t of Corr., 2009

WL 1873745 at *1 (N.D. Fla. June 27, 2009) (finding “vague and
non-specific threats and ‘danger’ at the hands of correctional
officers” insufficient to meet § 1915(g)’s “imminent danger of
serious physical injury” exception).

Austin simply seeks redress

for his claim that approximately two years ago Manuma allegedly
hit him in the face with a plastic sugar bowl in violation of the
Eighth Amendment.

Austin made these identical claims in an

earlier case in this court, Austin v. Manuma, 1:10-cv-00692 JMS
(D. Haw. Aug. 30, 2011).

Austin later voluntarily dismissed this

action to pursue his claims in the state court.

State court

records show that Austin’s state case against Manuma is ongoing.3
See Hawai’i Judiciary’s Public Access to Court Information:

2

The plaintiff in Cervantes alleged that the threat he
faced from contagious diseases violated the Eighth Amendment’s
prohibition against cruel and unusual punishment, and submitted
specific facts supporting such a claim.
3

See Austin v. Manuma, 1CC11-1-001350 (First Circuit Court,
opened Jun. 30, 2011).
4

http://hoohiki1.courts.state.hi.us/jud/Hoohiki/.

Because Austin

fails to articulate specific facts indicating that he is in
imminent danger from a particular harm he fails to meet the
exception necessary to bypass § 1915(g)’s restriction on his
filing suit without prepayment of the filing fee.
C.

Order to Show Cause
The court may raise the § 1915(g) problem sua sponte,

but should give the prisoner an opportunity to be heard on the
matter before dismissing the action.
1057-58.

See Cervantes 493 F.3d at

Once a court gives such notice, the prisoner bears the

burden of showing that § 1915(g) does not bar pauper status for
him.

Andrews, 398 F.3d at 1116.
Because Austin does not allege that he is under

imminent danger of serious physical injury as of the date he
filed the Complaint, Austin is ORDERED TO SHOW CAUSE on or before
May 16, 2012, why this action should not be dismissed pursuant to
28 U.S.C. § 1915(g).

In the alternative, Austin may avoid

dismissal under § 1915(g) by paying the full $350.00 filing fee
by the court’s deadline.

Until Austin sufficiently responds to

this Order to Show Cause or pays the filing fee for this action,
the court will take no further action on any motions or requests
that he files.
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II.

CONCLUSION

Austin is ORDERED to show cause on or before May 16,
2012, showing that he is entitled to proceed in forma pauperis
under § 1915(g)’s exception to the 3-strikes bar.

Failure to

file a response on or before May 16, 2012, showing good cause, or
to pay the full filing fee at that time, will result in the
dismissal of this action without further notice to Austin.

All

pending motions are DENIED without prejudice to refiling after
Austin’s in forma pauperis status has been determined.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, April 25, 2012.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

Austin v. Manuma, et al., Civ. No. 12-00199 LEK/BMK; Order To Show Cause;
psas/3 Strikes Ords/DMP/2012/Austin 12-199 lek bmk (OSC 3 stks)

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