Tierney v. Atkins et al

Filing 7

ORDER DENYING IN FORMA PAUPERIS APPLICATION, MOTION FOR APPOINTMENT OF COUNSEL, AND MOTION FOR EMERGENCY DENTAL CARE; AND ORDER TO SHOW CAUSE 2 ; 3 ; 4 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 6/4/12. (Motions terminated: 2 MO TION for Leave to Proceed in forma pauperis filed by Michael C. Tierney, 3 MOTION to Appoint Counsel filed by Michael C. Tierney, 4 MOTION FOR EMERGENCY DENTAL TREATMENT filed by Michael C. Tierney. Show Cause Response due by 7/5/2012.) "If Plaintiff intends to show cause, rather than pay the filing fee, he is ORDERED to concurrently submit a fully completed IFP application. Failure to file a response within thirty days from the date of this order, on or before Thursday, July 5, 2012, showing good cause, pay the full filing fee, or submit a complete IFP application, will result in the dismissal of this action without further notice to Plaintiff.") (emt, )CERTIFICATE OF SERVICEParticip ants 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 June 5, 2012.

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

)
)
Plaintiff,
)
)
vs.
)
)
DR. ATKINS, GOVERNOR NEIL
)
ABERCROMBIE, WARDEN NOLAN
)
ESPINDA,
)
)
)
Defendants.
______________________________ )

CIVIL NO. 12-00308 SOM/KSC
ORDER DENYING IN FORMA
PAUPERIS APPLICATION, MOTION
FOR APPOINTMENT OF COUNSEL,
AND MOTION FOR EMERGENCY
DENTAL CARE; AND ORDER TO SHOW
CAUSE

ORDER DENYING IN FORMA PAUPERIS APPLICATION, MOTION FOR
APPOINTMENT OF COUNSEL, AND MOTION FOR EMERGENCY DENTAL CARE;
AND ORDER TO SHOW CAUSE
Before the court is pro se Plaintiff Michael C.
Tierney’s prisoner civil rights complaint, in forma pauperis
(“IFP”) application, motion for appointment of counsel, and
motion for emergency dental care.

ECF #1-#4.

Plaintiff alleges

that Defendants Halawa Correctional Facility (“HCF”) dentist Dr.
Atkins, Hawaii Governor Neil Abercrombie, and HCF Warden Nolan
Espinda violated his federal constitutional and statutory rights
by denying him adequate dental care and housing him in a cell
that contains “friable asbestos” on its ceiling.
at 5-7.

Compl., ECF #1

For the following reasons, Plaintiff’s IFP application

is DENIED as incomplete, his motions for appointment of counsel
and emergency dental care are DENIED, and he is ORDERED TO SHOW
CAUSE why he should be allowed to proceed IFP in this action.
//
//

I. DISCUSSION
A.

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 federal courts’ public dockets and electronic
records, http://pacer.psc.uscourts.gov, (“PACER”), reveal that
Plaintiff has filed sixty-three civil actions in this and other
federal courts, many of which were dismissed as frivolous or for
failure to state a claim.1

See e.g., Tierney v. Kupers, 128 F.3d

1310, 1312 (9th Cir. 1997); Tierney v. Clinton, 1996 WL 310171
(D.C. Cir. May 28, 1996), aff’g Tierney v. Clinton, 1:95-01268;
Tierney v. United States, 1:11-00082 (D. Haw. 2011); Tierney v.
United States, 1:10-00675 (D. Haw. 2010); Tierney v. United
States, 1:10-00166 (D. Haw. 2010); Tierney v. United States,

1

The court may raise the § 1915(g) problem sua sponte, and
the prisoner bears the ultimate burden of persuading the court
that § 1915(g) does not bar pauper status for him. See Andrews
v. King, 398 F.3d 1113, 1120-21 (9th Cir. 2005) (“Andrews I”).
2

1:08-00543 (D. Haw. 2010); Tierney v. United States, 1:08-00326
(D. Haw. 2008); Tierney v. Quiggle, 1:96-5995 (W.D. Wash. 1997).
B.

No Imminent Danger of Serious Physical Injury
In the actions cited above and more recently, the court

has explicitly informed Plaintiff numerous times that he has
accrued three strikes.2

See Andrews I, 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).

Because

Plaintiff has three strikes, he may not bring a civil action
without prepayment of the $350.00 filing fee unless he is in
imminent danger of serious physical injury.
1.

28 U.S.C. § 1915(g).

Count I
Plaintiff alleges that HCF Dentist Dr. Atkins denied

him “adequate” dental care on May 27, 2012, several days after
Plaintiff transferred to HCF.

He alleges he is in extreme pain

and is having difficulty eating.

Plaintiff gives no further

details regarding this alleged “denial of adequate” dental care,
however.

The day before receiving a copy of this action, this

court held a hearing concerning Plaintiff’s similar allegation in
a separate case against Oahu Community Correctional Center
2

See e.g., Tierney v. Tapu, 1:12-cv-00135 (D. Haw. 2012);
Tierney v. Espinda, 1:12-cv-00148 (D. Haw. 2012); Tierney v.
Matsuoka, 1:12-cv-00286 (D. Haw. 2012); Tierney v. Nieto, 1:12cv-00287 (D. Haw. 2012); Tierney v. Chun, 1:12-cv-00288 (D. Haw.
2012).
3

(“OCCC”) dentist Dr. Hamada.

See 1:12-cv-00117.

At that

hearing, Plaintiff conceded that he had received dental care from
Dr. Hamada and from Dr. Atkins, but disagreed with their
professional diagnoses that two of his teeth, #3 and #14, were
irreparable, and that tooth #31 simply required a filling.
Plaintiff refuses to have teeth #3 and #14 extracted and has not
permitted any dentist to fill tooth #31.
Plaintiff has long sought root canals and dental crowns
for these teeth, despite Dr. Atkins’s and Dr. Hamada’s opinions
that such treatment is not feasible for #3 and #14 and not
available free-of-charge for #31 while Plaintiff is
incarcerated.3

Thus, Plaintiff has the power to alleviate his

pain and discomfort by agreeing to the treatment prescribed by
the prison dentists.

Taking judicial notice of evidence

presented in Tierney’s related case on May 31, 2012, this court
finds that Plaintiff is not plausibly alleging imminent danger of
serious physical injury.
2.

Counts II and II
Plaintiff next claims that Hawaii Governor Abercrombie

and HCF Warden Espinda have violated the Constitution, the Clean
Air Act and the Americans With Disabilities Act, by knowingly
3

See Tierney v. Unnamed Dentist, 1:11-cv-00369; Tierney v.
Okamoto, 1:11-cv-00800; Tierney v. Hamada, 1:12-cv-00117. The
court takes judicial notice of these actions, and Plaintiff’s
claims for relief therein. See Lee v. City of Los Angeles, 250
F.3d 668, 689-690 (9th Cir. 2001); Fed. R. Evid. 201(b).
4

housing him in a cell that allegedly has friable asbestos in its
ceiling, from October 28, 2009, to September 30, 2011, and again
from May 23, 2012, until the present.

Compl., ECF #1 at 6-7.

Plaintiff claims that this asbestos was “sprayed on in 1985 and
it is also contaminated with tar and nicotine,” allegedly
absorbed in the ceiling when HCF still allowed smoking.

Compl.

at 6.
These facts do not support the existence of an imminent
danger of serious physical injury when Plaintiff commenced this
action.

See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir.

2007) (“Andrews II”) (“the availability of the exception turns on
the conditions a prisoner faced at the time the complaint was
filed, not at some earlier or later time”).

“[A]ssertions of

imminent danger of less obviously injurious practices may be
rejected as overly speculative or fanciful.”

Id. at 1057 n.11.

First, “‘[i]mminent’ dangers are those dangers which
are about to occur at any moment or are impending.”
v. McKelvie, 239 F.3d 307, 315 (3d Cir. 2001).

Abdul-Akbar

“[A] prisoner’s

allegation that he faced danger in the past” does not satisfy
§ 1915(g)’s imminent danger exception).

Id. at 311.

Plaintiff’s

claim concerning his alleged asbestos exposure from 2009 to 2011
does not support a finding of “imminent” danger.

Moreover, the

fact that Plaintiff alleges that he first became subject to these
conditions in 2009, but nonetheless waited until 2012 to raise

5

these claims, suggests that his circumstances do not present a
“genuine emergency” that warrants application of the imminent
danger exception in § 1915(g).
Second, although Plaintiff claims that his eyes are
sore and watering and he is having trouble breathing due to
asbestos exposure, these completely speculative conclusions as to
the cause of his ailments are insufficient to support a claim of
imminent danger of serious physical injury.

See Marshall v.

Florida Dept. of Corrections, 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).
Imminent danger of serious physical injury must be a
real, present threat, not merely speculative or hypothetical.

To

meet his burden under § 1915(g), an inmate must provide “specific
fact allegations of ongoing serious physical injury, or a pattern
of misconduct evidencing the likelihood of imminent serious
physical injury.”
Cir. 2003).

Martin v. Shelton, 319 F.3d 1048, 1050 (8th

“Vague and utterly conclusory assertions” of harm

are insufficient.

White v. Colorado, 157 F.3d 1226, 1231–32

(10th Cir. 1998).

That is, the “imminent danger” exception is

available “for genuine emergencies,” where “time is pressing” and

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“a threat . . . is real and proximate.”

Lewis v. Sullivan, 279

F.3d 526, 531 (7th Cir. 2002).
Plaintiff’s claim that asbestos was sprayed on HCF’s
ceilings in 1985 is completely speculative.

Many courts have

found that similar claims do not suffice to show imminent danger
of serious physical injury.

See e.g., Polanco v. Hopkins, 510

F.3d 152, 155 (2d Cir. 2007) (affirming district court’s denial
of § 1915(g)’s exception where prisoner alleged speculative
health risks associated with exposure to mold); Martin v.
Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (holding that
prisoner’s allegations of exposure to inclement weather that
could be harmful to his medical condition were insufficient to
establish imminent danger); Cardona v. Bledsoe, 2011 WL 1832777,
*6 (M.D. Pa., May 12, 2011) (finding that inmate’s conclusory
allegations concerning possible asbestos exposure were
insufficient to invoke § 1915(g)’s exception); Jackson v. Auburn
Corr. Fac., 2009 WL 1663986 (N.D.N.Y., Jun. 15, 2009) (holding
that prisoner’s allegation of exposure to second hand smoke does
not constitute imminent danger); Johnson v. Barney, 2005 WL
2173950, at *1-2 (S.D.N.Y. Sept.6, 2005) (finding that inmate’s
allegation of danger at facility he was not housed at, but may
pass through at infrequent occasions in the future, does not
establish imminent danger).

7

Plaintiff’s allegations are also easily distinguishable
from those in Andrews II.

There, the prisoner alleged facts

indicating that he had suffered a particular injury, that the
defendants knew of a particular harm to him, and that they failed
to act to address the harm.

493 F.3d at 1050-51.

In other

words, the plaintiff in Andrews II alleged sufficient facts to
put the named defendants on notice of the harm.

Plaintiff

articulates no specific facts indicating that any named Defendant
is personally subjecting him to imminent danger from any
particular and specific harm.

Rather, Plaintiff’s implausible,

conclusory allegations concerning asbestos exposure and the
denial of dental care are obvious attempts to meet the
irreparable injury threshold of § 1915(g).
Plaintiff fails to allege the imminent danger of
serious physical injury necessary to bypass § 1915(g)’s
restriction on his filing suit without prepayment of the filing
fee.
C.

Order to Show Cause
Andrews I allows the court to raise the § 1915(g)

problem sua sponte, but generally requires the court to notify
the prisoner of the earlier dismissals it considers to support a
§ 1915(g) dismissal and to give the prisoner an opportunity to be
heard on the matter before dismissing the action.
at 1120.

See 398 F.3d

Once notice is given, the prisoner bears the burden of
8

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

Id.

at 1116.
Requiring abusive litigants, such as Plaintiff, to
demonstrate the imminence and seriousness of the alleged danger
to his body furthers the intent of Congress to curtail frivolous
prison litigation.

See Abdul-Akbar, 239 F.3d at 315 (stating,

“[W]e refuse to conclude that with one hand Congress intended to
enact a statutory rule . . . but, with the other hand, it
engrafted an open-ended exception that would eviscerate the
rule.”).
Because Plaintiff does not plausibly allege that he
faces an imminent danger of serious physical injury, he is
ordered to show cause on or before Thursday, July 5, 2012, that
is, within thirty days from the date this order is filed,, why
this action should not be dismissed pursuant to 28 U.S.C. §
1915(g).

In the alternative, Plaintiff may avoid dismissal by

paying the full $350.00 filing fee by the court’s deadline.
D.

Plaintiff’s IFP Application is Denied as Incomplete
Although Plaintiff’s IFP application is signed and has

a recent trust account statement from OCCC, it is not signed by
HCF prison authorities certifying the amount of funds in
Plaintiff’s trust account.

This may be because Plaintiff filled

it out on Sunday, May 27, 2012, and sent it immediately to the
court, rather than asking HCF prison authorities to sign and
9

attach his new HCF statement.4
DENIED as incomplete.

Plaintiff’s IFP application is

See 28 U.S.C. § 1915(a)(2).

If Plaintiff

intends to show cause, rather than pay the filing fee, he is
ORDERED to concurrently submit a fully completed IFP application.
Failure to file a response within thirty days from the date of
this order, on or before Thursday, July 5, 2012, showing good
cause, pay the full filing fee, or submit a complete IFP
application, will result in the dismissal of this action without
further notice to Plaintiff.
E.

Motions For Appointment of Counsel and Emergency Dental Care
Are Denied
All pending motions, including Plaintiff’s motion for

appointment of counsel and motion for emergency dental care, are
DENIED without prejudice to refiling after Plaintiff’s in forma
pauperis status has been determined.

As to appointment of

counsel, the court is satisfied that the interests of justice do
not require the appointment of counsel for Plaintiff to respond
to this order.

See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.

1983).
The request for “emergency” dental care is also DENIED.
This court held proceedings on May 31, 2012, regarding
Plaintiff’s first motion for emergency dental care in 1:12-cv4

Despite Plaintiff’s many protestations in the past several
months that prison authorities will not make copies of his trust
account statements, he clearly has a current copy of his account
balance from OCCC officials.
10

00117.

At that hearing, Plaintiff agreed to have the two teeth

that are causing him pain extracted.

However, the very next day,

according to prison officials, Plaintiff refused dental care.
Whether Plaintiff is scheduled for extractions or is declining
them, he is controlling when and whether he receives dental care.
Under such circumstances, he cannot obtain a court order
requiring “emergency” dental care.
Plaintiff is NOTIFIED that, until he submits a fully
completed IFP application and responds to the OSC, the court will
not consider any motions or documents he has filed.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 4, 2012.

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

Tierney v. Atkins, et al., 1:12-00308 SOM/KSC; Order Denying In Forma Pauperis
Application, Motion for Appointment of Counsel, and Motion for Emergency
Dental Care, and Order to Show Cause; psas/3 Strikes Ords & OSCs/DMP/2012/oscs
/Tierney 12-308 som (dntl care & asbestos)

11