In Re: Alden Pauline's Motion for Hearing Regarding Safety
Filing
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ORDER DENYING IN FORMA PAUPERIS STATUS AND DISMISSING ACTION WITHOUT PREJUDICE re 1 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 3/24/2015. " Pauline fails to carry his burden to show that he was in imminent danger of se rious physical injury when he brought this action. His own statements refute such a finding. He may not proceed without prepayment of the civil filing fee. This action is DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(g). Pauline ma y 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. Any pending motions 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)." (emt, )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). Alden Pauline, Jr. served by first class mail at the address of record on March 24, 2015.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
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IN RE: ALDEN PAULINE, JR., )
MOTION FOR SAFETY,
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____________________________ )
Civ. No. 15-00084 SOM/KSC
ORDER DENYING IN FORMA
PAUPERIS STATUS AND DISMISSING
ACTION WITHOUT PREJUDICE
ORDER DENYING IN FORMA PAUPERIS STATUS AND
DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(g)
On March 9, 2015, the court received a letter from
Alden Pauline, Jr., an inmate at the Halawa Correctional Facility
(“HCF”), that had been forwarded from the Hawaii Supreme Court.
See Doc. Nos. 1, 1-2.
Pauline titled the letter “Motion for the
Chief Judge to Hold a Hearing Regarding His Safety.”
Doc. No. 1.
The letter refers to United States v. Montervon and Reynolds, Cr.
No. 14-00912 JMS (D. Haw.), in which Pauline is neither a party
nor a witness.
It also repeats many of Pauline’s pending claims
in Pauline v. Espinda, et al., Civ. No. 13-00612 HG/RLP, without
referring to that case.
To determine Pauline’s intent in filing
the letter, the court opened a miscellaneous case, In re: Alden
Pauline, Jr., Misc. No. 15-00085 SOM, and scheduled a status
conference for March 18, 2015, with Pauline and representatives
from the Hawaii Department of Public Safety (“DPS”) and the
Office of the Attorney General.
See Doc. No. 2.
Based on Pauline’s statements at the March 18, 2015,
telephonic hearing, the court construes Pauline’s letter as a
prisoner civil rights action.
Doc. No. 4.
Pauline commenced
this action without submitting the civil filing fee and
apparently seeks to proceed in forma pauperis (“IFP”).
Moreover,
during the hearing, Pauline admitted that he was not in imminent
danger of serious physical injury from Defendants or others when
he filed this action.
Having had three or more actions dismissed
as frivolous, malicious, or failing to state a claim, Pauline may
not proceed IFP unless he is in imminent danger of serious
physical injury.
See 28 U.S.C. § 1915(g).
This action is
DISMISSED without prejudice to the refiling by Pauline of his
claims in another action with concurrent payment of the civil
filing fee.
I.
BACKGROUND
Pauline has another active prisoner civil rights case
in which he was granted IFP status.
See Pauline v. Espinda, et
al., Civ. No. 13-00612 HG/RLP (D. Haw.), Doc. No. 6 (holding
Pauline sufficiently alleged imminent danger of serious physical
injury).
He has repeatedly demanded an immediate hearing on his
claims in that action.
See id., e.g., Doc. Nos. 1, 9, 14, 20,
22, 23, 36, 37, 46, 48, 56, 57, 65, 84, 90.
Pauline recently
filed a motion in that case, Doc. No. 125, requesting permission
to file a complaint against United States District Judge J.
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Michael Seabright and others, based on Judge Seabright’s alleged
failure to respond to Pauline’s letters asking to appear as a
witness in Cr. No. 14-00912 JMS.
Pauline sought to testify about
his alleged involvement as a confidential informant for the Drug
Enforcement Agency (“DEA”) and DPS, which Pauline claims led to
the arrest of Derek Montervon and Sheryl Reynolds in Cr. No. 1400912 JMS.
The Clerk of Court informed Pauline that he needed no
motion to commence an action, and sent him the proper forms for
filing an action.
Doc. No. 126.
On March 9, 2015, the court opened this civil action.
Doc. No. 1.
Pauline appears to name DPS Deputy Sheriff Tommy
Kong, DEA Agent Bert Akana, and criminal defendants Sheryl
Reynolds and Derek Montervon, see Montervan, Cr. No. 14-00912
JMS, as Defendants.
Pauline claims that, while he was
incarcerated at HCF, he assisted Akana and Kong in setting up
drug buys with Reynolds and Montervon, who were not incarcerated
at the time, in exchange for Kong’s and Akana’s promises to
transfer him to the Federal Detention Center-Honolulu (“FDCHNL”).
He alleges that Akana and Kong failed to transfer him to
FDC-HNL, and that HCF prison guards were therefore able to
retaliate against him at HCF for having set up their friends and
family members.
Pauline specifically claims that (1) Adult
Corrections Officer (“ACO”) Tuifau sexually and physically
assaulted him because Tuifau is related to Sheryl Reynolds; (2)
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ACO Futioa put a gun to Pauline’s head; (3) ACO Ray cut Pauline’s
head and eye open, and put glass in his food tray that cut his
mouth; (3) ACO Sarkissian has falsely written Pauline up,
threatened him, tampered with his mail, and sent three gang
members to “hurt” him; and (4) unnamed ACOs refuse Pauline soap
and toilet paper.
Pauline has repeatedly made these same claims
against the same individuals in Civ. No. 13-00612 HG/RLP.
Three days later, on March 12, 2015, Pauline commenced
Pauline v. Seabright, et al., Civ. No. 15-00074 LEK/RLP (D. Haw.
2015), alleging that (1) Judge Seabright and Assistant United
States Attorney Mark Inciong had denied his request to be a
witness in Cr. No. 14-00912 JMS; and (2) Kong and Akana had
failed to transfer him to FDC-HNL, or advocate for him with the
Hawaii Paroling Authority.
See id.
Pauline also named HCF Gang
Intelligence Officer Kimo Bruhn and Lt. Luetta as defendants to
the new suit, but provided no information regarding their
connection to his claims.
The new case is awaiting a
determination as to whether Pauline is granted IFP status and so
may proceed without concurrent payment of the civil filing fee.
To determine Pauline’s intent in commencing the present
action by sending a letter apparently directed to this court
(although routed to the Hawaii Supreme Court), the court held a
hearing on March 18, 2015.
Doc. No. 4.
The court was also
concerned about Plaintiff’s well-being in light of his claims,
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and about whether he was plausibly alleging imminent danger such
that he could proceed IFP.
At the hearing, Pauline explained
that his letter of March 9, 2015, was intended to initiate a new
civil action against Kong and Akana for their failure to keep
their promise to transfer him to FDC-HNL, and against unnamed HCF
officials who are allegedly keeping him from being transferred.
II.
28 U.S.C. § 1915(g)
A prisoner may not bring a civil action or appeal a
civil judgment IFP if he 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
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),
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after notifying the prisoner of the strikes it considers to
support such a dismissal, and affording the prisoner an
opportunity to be heard 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
persuading the court that § 1915(g) does not preclude IFP
status”).
Pauline has had three or more prior prisoner actions
dismissed as frivolous or as failing to state a claim.
See,
e.g., Pauline v. Tufono, et al., Civ. No. 08-00194 JMS; Pauline
v. Pali Momi Med. Ctr, et al., Civ. No. 08-00195 HG; Pauline v.
H.C.F. Adm’r, et al., Civ. No. 08-00196 SOM; and Pauline v.
Tufono, et al., Civ. No. 08-00389 DAE.
This court has notified
Pauline of his strikes numerous times and informed him that he
may not proceed IFP unless he is in danger of serious physical
injury.
See, e.g., Pauline v. Frank, Civ. No. 09-00514 SOM/BMK
(D. Haw. 2009); see also PACER, http://pacer.psc.uscourts.gov.
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.”
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Andrews v.
Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007).
“[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 (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, throughout the hearing on March 18, 2015,
Pauline was afforded an opportunity to be heard regarding whether
he was in imminent danger when he filed this action.
See
Andrews, 398 F.3d at 1120.
Second, Pauline unequivocally stated several times on
the record that he was neither in danger at the time of the March
18 hearing, nor when he mailed his pleading.
Rather, Pauline
said that he had resolved his fears of retaliation from HCF staff
on or before January 15, 2015, two months before commencing this
suit, through discussions with HCF and DPS officials Captain
Paleka, Shelley Nobriga, Dovie Borges, Chief of Security Lyle
Antonio, and Patrick Nakashima.
Pauline said the last time that
he feared for his safety from ACO retaliation was in December
2014, when an ACO allegedly handled him roughly during a transfer
from High to Medium Security protective custody, cutting
Pauline’s eye.
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Third, Pauline explicitly stated that he has not felt
threatened by other inmates since Magistrate Judge Puglisi held a
hearing on his request for injunctive relief in Civ. No. 13-00612
HG/RLP, and he was moved to protective custody on or about August
28, 2014.
See id., Doc. No. 87 (Antonio Decl.), PageID #411 ¶ 3;
see also Findings and Recommendation, Doc. No. 105, PageID #539,
545.
Fourth, Pauline has no constitutional right to be
transferred to another prison, remain in a particular prison, or
avoid transfers within a prison.
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).
Further, Pauline 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,
Reynolds, Montervon, and unnamed HCF/DPS officials for failure to
secure him a transfer or parole therefore fail to state a claim.
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Fifth, if Pauline fails to state a cognizable claim
against Kong, Akana, Montervon, and Reynolds, 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 violation of law” by Defendants Kong, Akana,
Reynolds, or Montervon.
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).
Moreover, Pauline does
not explain how Montervon and Reynolds, who were indicted on
October 22, 2014, see Cr. No. 14-00912 JMS, were acting under
color of state law when they allegedly bought drugs with his
assistance, or have posed a threat to his safety since their
confinement at FDC-HNL on October 28 and 30, 2014, respectively.
See 42 U.S.C. § 1983.
IV.
CONCLUSION
Pauline fails to carry his burden to show that he was
in imminent danger of serious physical injury when he brought
this action.
His own statements refute such a finding.
not proceed without prepayment of the civil filing fee.
He may
This
action is DISMISSED without prejudice pursuant to 28 U.S.C.
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§ 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.
Any pending motions 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).
IT IS SO ORDERED.
DATED:
Honolulu, Hawaii, March 24, 2015.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
In re: Alden Pauline, Jr., Civ. No. 15-00084 SOM/KSC; 3 stks 2015;
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