Pauline v. Seabright et al

Filing 6

ORDER DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(g). Signed by JUDGE LESLIE E. KOBAYASHI on 03/31/2015. The March 12, 2015 Deficiency Order is VACATED. Any pending motio ns are DISMISSED. The Clerk shall close the case and note on the docket that this dismissal is without prejudice pursuant to 28 U.S.C. § 1915(g). (eps)CERTIFICATE OF SERVICEParticipants register ed 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
)
ALDEN PAULINE, #A0256259,
)
)
Plaintiff,
)
)
v.
)
)
JUDGE MICHAEL SEABRIGHT, et )
al.,
)
)
Defendants,
)
____________________________ )

Civ. No. 15-00074 LEK/RLP

ORDER DENYING IN FORMA
PAUPERIS APPLICATION AND
DISMISSING ACTION WITHOUT
PREJUDICE PURSUANT TO 28
U.S.C. § 1915(g)

ORDER DENYING IN FORMA PAUPERIS APPLICATION AND
DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(g)
Before the court is pro se Plaintiff Alden Pauline’s
prisoner civil rights complaint, “Motion Requesting a Hereing
[sic] for my Civil Law Suit,” and application to proceed in forma
pauperis (“IFP”).

Doc. Nos. 1, 4, 5.

Pauline names United

States District Judge J. Michael Seabright, Assistant United
States (“AUSA”) Attorney Mark Inciong, Drug Enforcement
Administration (“DEA”) Agent Bert Akana, Hawaii Department of
Public Safety (“DPS”) Deputy Sheriff Tommy Kong, federal criminal
defendants Sheryl Reynolds, and Derek Montervon1 as Defendants to
this suit.

Pauline also refers to HCF Gang Intelligence Officer

Kimo Bruhn and Lt. Luetta as defendants within the Complaint, see

1

See United States v. Derek K. Montervon and Sheryl K. Reynolds,
Cr. No. 14-00912 JMS.

Doc. No. 1, PageID #2, but does not name them in the caption or
explain their connection to his claims.
Pauline claims Defendants violated his rights under the
Eighth and Fourteenth Amendments, the Americans With Disabilities
Act of 1990 (“ADA”), 42 U.S.C. § 12101, et seq., and state law.
See Doc. No. 1, PageID #2.
claims.

He seeks an immediate hearing on his

Id., PageID #8; Doc. No. 4.

For the following reasons,

Pauline’s IFP application and Motion are DENIED, and this suit is
DISMISSED without prejudice.
I.

BACKGROUND

Pauline is incarcerated at the Halawa Correctional
Facility (“HCF”).

He commenced this action on March 9, 2015, the

date he signed the Complaint.
12, 2015), PageID #8.

See Compl., Doc. No. 1 (filed Mar.

Pauline claims that he assisted Akana and

Kong in arranging five “drug buys” with Reynolds and Montervon,
in exchange for an agreement to transfer him to the Federal
Detention Center-Honolulu (“FDC-Honolulu”), and speak on his
behalf with the Hawaii Paroling Authority.

Id., PageID #5-7.

He

alleges Akana and Kong reneged on these promises, after which HCF
prison guards and inmates retaliated against him and the HPA
denied him parole.2

He does not explain how Reynolds or

2

These claims form the factual basis underlying his claims in
Pauline v. Espinda, Civ. No. 13-00612 HG-RLP, in which Pauline
alleges HCF officials and guards retaliated against him for
2

Montervon violated his federal civil rights, but nonetheless
includes them as Defendants.
Pauline further claims that District Judge Seabright,
who is presiding over Cr. No. 14-00912 JMS, and AUSA Inciong, who
is prosecuting the case, failed to reply to his letters
requesting to be called as a witness to a hearing in Cr. No. 1400912 JMS.

Pauline is neither a party nor a witness in this

action, but apparently sought to explain his involvement with the
federal criminal charges against Reynolds and Montervon.
On the same date that Pauline signed the Complaint, the
court also received a letter from Pauline dated March 2, 2015,
that had been forwarded from the Hawaii Supreme Court.
re: Pauline, Civ. No. 15-00084 SOM/KSC, Doc. No. 1.

See In

The letter

is titled “Motion for the Chief Judge to Hold a Hearing Regarding
His Safety.”

This letter refers to Defendants Kong, Akana,

Reynolds, and Montervon and the ongoing federal criminal case in
Cr. No. 14-00912 JMS, and repeats Pauline’s pending claims in
Civ. No. 13-00612 HG/RLP.

The court opened a miscellaneous case

to determine Pauline’s intent in sending this letter, Misc. No.
15-00085 SOM.

On March 18, 2015, Chief United States District

Judge Susan Oki Mollway held a telephonic status conference with

acting as a confidential informant for Kong and Akana in 2013.
Despite opportunities to do so, Pauline never named Kong, Akana,
Montervon, or Reynolds as defendants in that action.
3

Pauline, DPS representative Shelley Nobriga, Esq, and Deputy
Attorney General Henry Kim, on the record.

See Doc. No. 2.

During that hearing, Pauline identified the letter he sent to the
Hawaii Supreme Court as a new civil rights complaint meant to be
filed in this court, and he explained the basis for his claims.
Doc. No. 4.

Pauline also admitted several times that he was not

in imminent danger of serious physical injury when he sent the
letter and had not felt endangered from Defendants, HCF officials
and guards, or other inmates for several months.
Chief Judge Mollway construed Pauline’s letter as a
prisoner civil rights action.
No. 4.

See Civ. No. 15-00084 SOM/KSC Doc.

On March 24, 2015, Judge Mollway determined that Pauline

has had three or more actions dismissed as frivolous, malicious,
or failing to state a claim, as defined by 28 U.S.C. § 1915(g).
Id., Doc. No. 6.

Judge Mollway therefore held that Pauline could

not proceed IFP in Civ. No. 15-00084 SOM, because he had
explicitly stated on the record that he was not in imminent
danger of serious physical injury when he sent his letter, and
had not felt endangered by anyone since, at the latest, January
15, 2015.
II.

28 U.S.C. § 1915(g)

A prisoner may not bring a civil action or appeal a
civil judgment IFP if he has:

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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
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 district court

may dismiss sua sponte an action that is barred by § 1915(g),
after notifying the prisoner of the strikes it considers to
support such a dismissal, and affording the prisoner an
opportunity to be heard regarding his strikes before dismissal.
See id. at 1120.

After notice, the prisoner bears the ultimate

burden of persuading the court that § 1915(g) does not apply.
Id. (“once a prisoner has been placed on notice of the potential
disqualification under § 1915(g) by either the district court or
the defendant, the prisoner bears the ultimate burden of
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persuading the court that § 1915(g) does not preclude IFP
status”).
Pauline has had three or more prisoner actions
dismissed as frivolous, malicious, or failing to state a claim.
See, e.g.,Pauline v. Tufono, et al., Civ. No. 08-00389 DAE/LEK
(D. Haw. Aug. 29, 2008); Pauline v. Pali Momi Med. Ctr, et al.,
Civ. No. 08-00195 HG/KSC (D. Haw. June 3, 2008); Pauline v.
Tufono, et al., Civ. No. 08-00194 JMS/BMK (D. Haw. June 18,
2008); and Pauline v. H.C.F. Adm’r, et al., Civ. No. 08-00196
SOM/LEK (D. Haw. May 7, 2008).

The court has notified Pauline of

his strikes many times and has informed him that he may not
proceed IFP unless he is in imminent danger of serious physical
injury.

See, e.g., Pauline v. Mishra, et al., Civ. No. 09-00520

SOM/KSC, Doc. No. 30 (Tr. of hearing on Mot. to Revoke IFP) (D.
Haw. Mar. 18, 2010); Pauline v. Frank, Civ. No. 09-00514 SOM/BMK
(D. Haw. 2009).
III.

NO IMMINENT DANGER

“[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.”
Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007).

Andrews v.

“[T]he exception

applies if the complaint makes a plausible allegation that the
prisoner faced ‘imminent danger of serious physical injury’ at

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the time of filing.”

Id. at 1055 (citations omitted).

Claims of

“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, 32 F. Supp.
2d 1074, 1077 (E.D. Wis. 1999).
First, Pauline signed the Complaint on March 9, 2015.
See Compl., Doc. No. 1, PageID #8.

Pauline was afforded an

opportunity to be heard regarding his claims, his strikes, and
whether he was in imminent danger between March 2 and March 18,
2015, at the March 18, 2015 hearing in Civ. No. 15-00084 SOM.
This court has reviewed the transcript of that hearing and Judge
Mollway’s decision, and takes notice that Pauline stated
unequivocally several times on the record that he was neither in
danger at the time of the March 18, 2015 hearing, nor when he
mailed his pleading in Civ. No. 15-00084 SOM, on March 2, 2015.3
Instead, Pauline clearly stated that he had not felt
endangered or threatened by HCF staff since no later than
January 15, 2015, or perhaps, December 2014.

3

He further admitted

A court “may take notice of proceedings in other courts, both
within and without the federal judicial system, if those
proceedings have a direct relation to matters at issue.” U.S. ex
rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971
F.2d 244, 248 (9th Cir. 1992). A court may also take notice of
facts that are not subject to reasonable dispute, such as
Pauline’s on the record statements, because they “can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201(b).
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that he had neither been threatened by nor felt in imminent
danger of serious physical injury from other inmates since the
August 28, 2014 hearing on his request for injunctive relief in
Civ. No. 13-00612 HG/RLP, when he was moved to protective
custody.

See Civ. No. 13-00612 HG/RLP, Doc. No. 87, PageID #411

¶ 3(Antonio Decl.); Findings and Recommendation, Doc. No. 105,
PageID #539, #545.

Pauline’s statements are readily verifiable,

and he cannot reasonably dispute that he made these statements on
the record to Judge Mollway on March 18, 2015.

Pauline,

therefore, was not in imminent danger of serious physical injury
at the time he submitted this action for filing on March 9, 2015,
and is not entitled to an exception to the 3-strikes bar to
proceeding in forma pauperis in this case.

See Andrews, 493 F.3d

at 1053.
Second, Pauline’s allegations that he was sexually
assaulted, injured on his head and eye, and required surgery on
his “L ball,” (left testicle), are either currently pending in
Civ. No. 13-00612 HG/RLP, or have been extensively litigated in
Pauline’s earlier cases.

See Civ. No. 09-00520 SOM/KSC

(admitting that he self-mutilated his left testicle and was
seeking medical treatment for continuing pain).

That is,

Pauline’s allegations here, that inmates and guards sexually and

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physically assaulted him in retaliation for his assistance to
Kong and Akana, are pending in Civ. No. 13-00612 HG/RLP.
Third, Pauline fails to state a claim against
Defendants.

Pauline has no constitutional right to be

transferred to the FDC-Honolulu.

See Olim v. Wakinekona, 461

U.S. 238, 244-48 (1983); Meachum v. Fano, 427 U.S. 215, 223-225
(1976); Rizzo v. Dawson, 778 F.2d 527 (9th Cir. 1985) (prison
authorities may change a prisoner’s “place of confinement even
though the degree of confinement may be different and prison life
may be more disagreeable in one institution than in another”
without violating due process).

He also has no federal or state-

created liberty interest to parole or parole consideration.

See

Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S.
1, 7 (1979); Mujahid v. Apao, 795 F. Supp. 1020, 1024 (D. Haw.
1992) (finding no right to parole under Hawaii’s statutes).
Pauline’s claims against Kong, Akana, Sgt. Kimo Bruhn, and Lt.
Luetta, for their alleged failure to secure him a transfer or
parole fail to state a claim.4
Further, Pauline has no right to be present or to
testify at a trial or criminal proceeding when he is neither a
party nor a designated witness, and is, in fact, incarcerated.

4

Although Bruhn and Luetta are not properly named in the
Complaint, they are included here to thoroughly address Pauline’s
suggested defendants and claims.
9

Federal and state prosecutors and defense attorneys have complete
discretion to call whomever they determine is appropriate as
witnesses and are under no obligation to call an individual
simply because that person allegedly has information and wants to
testify.

See Lord v. Wood, 184 F.3d 1083, 1095 (9th Cir. 1999)

(“Few decisions a lawyer makes draw so heavily on professional
judgment as whether or not to proffer a witness at trial.”).
Pauline’s claims against Judge Seabright and AUSA Inciong
therefore fail to state a claim.
Moreover, Pauline does not explain how Montervon and
Reynolds, who were indicted on October 22, 2014, see Cr. No. 1400912 JMS, were either acting under color of state law or
violated his constitutional rights when they allegedly bought
drugs with his assistance, or have posed a threat to his safety
at HCF since their indictment.

See 42 U.S.C. § 1983.

He does

not allege he has had any contact with them since the undated
drug buys.
Fourth, because Pauline fails to state a cognizable
claim against Defendants, he cannot show a nexus between the
imminent danger he suggests in his pleading and the claims he
asserts against them.

That is, even assuming Pauline could be

said to assert that he is in imminent danger, he does not allege,
much less show, that such danger is “fairly traceable to a

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violation of law” by any Defendant.

Pettus v. Morgenthau, 554

F.3d 293, 299 (2d Cir. 2009); see also Thomas v. Ellis, 2015 WL
859071, at *3 (N.D. Cal. Feb. 26, 2015); Chappel v. Fleming, 2013
WL 2156575, at *5 (E.D. Cal. May 17, 2013); Williams v. Brennan,
2013 WL 394871, at *1 (E.D. Cal. Jan. 30, 2013).
IV.

CONCLUSION

Pauline fails to carry his burden of showing that he
was in imminent danger of serious physical injury when he brought
this action.

His statements at the March 18, 2015 hearing in

Civ. No. 15-00084 SOM refute such a finding, as do the simple
facts presented in his Complaint in this action.

Pauline may not

proceed in this action without having paid the civil filing fee.
This action is DISMISSED without prejudice pursuant to 28 U.S.C.
§ 1915(g).

Pauline may move within twenty-eight days to reopen

this action for just cause, or he may reassert his claims in a
new action, with concurrent payment of the $400.00 filing fee.
He is directed to heed the court’s analysis of his claims here if
he chooses to move reopen or file a new case.
The March 12, 2015 Deficiency Order is VACATED.
pending motions are DISMISSED.

Any

The Clerk shall close the case

and note on the docket that this dismissal is without prejudice
pursuant to 28 U.S.C. § 1915(g).
IT IS SO ORDERED.

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DATED: Honolulu, Hawaii, March 31, 2015.

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

Pauline v. Seabright, et al., Civ. No. 15-00074 LEK/RLP; 3 stks 2015; J:\PSA Draft
Ords\LEK\Pauline 15-74 LEK (dny admits no imm dng & ftsc).wpd

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