Thompson v. City and County of Honolulu, et al

Filing 8

ORDER PROVISIONALLY GRANTING IN FORMA PAUPERIS APPLICATION AND DIRECTING SERVICE re 3 - Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 1/18/2017. "(1) Thompson's IFP application is provisionally GRANTED. DPS SHALL send a certification of the balance in Thompson's prison account to the court on or before January 31, 2017. DPS shall thereafter collect and remit to the court monthly payments equaling 20% of Thompson's preceding month&# 039;s income or balance when his account exceeds $10.00, until the $350.00 civil filing fee is paid in full. (2) Claims against the City and County of Honolulu and the Halawa Correctional Facility are DISMISSED. (3) Thompson S HALL request the U.S. Marshal to effect service on Defendants Hope and Smith as directed above. The Clerk is DIRECTED to send Thompson the service forms detailed above so that he may comply with this Order. (4) Hope and Smith SHALL file a resp onse to Thompson's Complaint. (5) The Clerk is DIRECTED to send a copy of this order to Plaintiff, HCF Warden Francis Sequeira, DPS Litigation Coordinator Shelley Nobriga, Esq., the U.S. Marshal, and the District of Hawaii's Financial Department." Motion terminated: 3 MOTION for Leave to Proceed in forma pauperis filed by Thad J. Thompson. (emt, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
THAD THOMPSON #A5013250,

)
)
Plaintiff,
)
)
vs.
)
)
CITY AND COUNTY OF
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HONOLULU, HALAWA CORR.
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FACILITY, HENRY HOPE,
)
BRANDON SMITH,
)
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Defendants.
)
_______________________________ )

CIV. NO. 17-00002 JMS/KSC
ORDER PROVISIONALLY
GRANTING IN FORMA PAUPERIS
APPLICATION AND DIRECTING
SERVICE

ORDER PROVISIONALLY GRANTING IN FORMA PAUPERIS
APPLICATION AND DIRECTING SERVICE
Before the Court is pro se Plaintiff Thad Thompson’s prisoner civil rights
Complaint and in forma pauperis (“IFP”) application. ECF Nos. 1, 2. Thompson
names the City and County of Honolulu, the Halawa Correctional Facility
(“HCF”), and HCF correctional officers (“CO”) Sergeant Henry Hope and
Brandon Smith as Defendants. He alleges Defendants violated his rights to access
the court and redress his grievances; he seeks relief under 42 U.S.C. § 1983.
For the following reasons, Thompson’s IFP application is provisionally
GRANTED, subject to prison officials filing a certified account statement showing

that Thompson is indigent. HCF and the City and County of Honolulu are
DISMISSED.
Thompson is DIRECTED to effect service on Defendants Henry Hope and
Brandon Smith by mailing a copy of the Complaint and completed service
documents to the United States Marshal. After service is effected, Hope and
Smith SHALL file a response to Thompson’s Complaint.
I. LEGAL STANDARD
The court must screen all prisoner civil actions seeking redress from a
governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). Complaints or
claims that are frivolous, malicious, fail to state a claim, or seek relief from an
immune defendant must be dismissed. 28 U.S.C. § 1915(e)(2); 28 U.S.C.
§ 1915A(b); 42 U.S.C. § 1997e(c)(1). During screening, the court sets conclusory
factual allegations aside, accepts non-conclusory factual allegations as true, and
determines whether these allegations state a plausible claim for relief. Ashcroft v.
Iqbal, 556 U.S. 662, 677-80 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). Plausibility does not mean “probability,” but it requires “more
than a sheer possibility that a defendant has acted unlawfully.” Id. at 678.
To state a claim, a pleading must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A
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complaint that lacks a cognizable legal theory or alleges insufficient facts under a
cognizable legal theory fails to state a claim. Balistreri v. Pacifica Police Dep’t,
901 F.2d 696, 699 (9th Cir. 1990). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556
U.S. at 678; Twombly, 550 U.S. at 555.
Courts must construe pro se pleadings liberally “to afford the petitioner the
benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)
(citations omitted). The court “should not dismiss a pro se complaint without
leave to amend unless ‘it is absolutely clear that the deficiencies of the complaint
could not be cured by amendment.’” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th
Cir. 2012) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir.
1988) (per curiam)).
II. BACKGROUND
Thompson has another federal civil lawsuit pending before this Court. See
Thompson v. Afamasaga, Civ. No. 1:16-cv-00128 JMS/KSC (D. Haw. 2016). On
November 22, 2016, Thompson was moved to the HCF medium facility special
housing unit (“MSHU”). He immediately requested copies of the forms he needed
to attend the MSHU law library or to use its legal kiosks and asked for his legal
papers (which were stored for the move to the MSHU) to stay abreast of his
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pending suit. Thompson says that Smith told him that while he is in pre-trial
disciplinary segregation, or if he is later found guilty and is sanctioned to
disciplinary segregation, he may not visit the law library, use legal kiosks, receive
mail, make and receive personal and legal phone calls, or retain his legal
documents. See generally, Compl., ECF No. 1; see also Pl.’s Mot. for Prelim. Inj.,
ECF No. 3.
Between November 22 and December 29, 2016, Thompson says he
submitted “multiple written requests” to Sergeant Hope requesting law library and
kiosk scheduling forms, legal and personal phone calls, mail delivery, and access
to his legal documents, always explaining that he had a pending federal civil suit.
ECF No. 1, PageId #4. Thompson made these same requests verbally to Smith.
Hope and Smith allegedly denied Thompson’s requests. Thompson says he is
currently pursuing a grievance over these issues but Hope and Smith’s alleged
denials of grievance forms have delayed his efforts.1

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An inmate must exhaust his claims before commencing a civil suit. Ross v. Blake, 136
S. Ct. 1850, 1854-55 (2016). Failure to exhaust is an affirmative defense that defendants must
raise and prove, however, the inmate must be allowed to explain his failure to exhaust. Jones v.
Bock, 549 U.S. 199, 216 (2007); Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014). The court
will not address this issue at this stage of litigation.
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Thompson claims that Hope and Smith’s actions violated his right to access
the court and caused him an “actual injury” to Civ. No. 1:16-cv-00128. He seeks
punitive damages, declaratory, and injunctive relief.
III. IFP APPLICATION
Thompson alleges that he is indigent and cannot pay the civil filing fee to
commence this action. He says he is unable to provide the court with a copy of his
trust account statement and prison certification of the amount in his account,
because Hope and Smith refused to process his request.
In Civ. No. 1:16-cv-00128, Thompson submitted an IFP application that
showed his account was in arrears and that he was indigent. Thompson is
therefore aware that, as a prisoner, he is responsible for paying the civil filing fee
regardless of the outcome of his suit. Because Thompson says that he cannot get
the proper forms or certification from prison officials, and based on his claims in
the Complaint, the Court provisionally GRANTS Thompson’s IFP application.
The Department of Public Safety (“DPS”) and HCF Warden are ORDERED
to submit a copy of Thompson’s six-month account balance and certificate
showing the amount in his account as of the date of filing this action and to collect
and remit to the court monthly payments equaling 20% of Thompson’s preceding
month’s income or balance when his account exceeds $10.00, until the $350.00
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civil filing fee applicable to those proceeding in forma pauperis is paid in full. See
28 U.S.C. § 1915(b)(2). These payments must be identified by the name and
number assigned to this action.
IV. DISCUSSION
“To sustain an action under section 1983, a plaintiff must show ‘(1) that the
conduct complained of was committed by a person acting under color of state law;
and (2) that the conduct deprived the plaintiff of a federal constitutional or
statutory right.’” Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007) (citation
omitted), vacated and remanded on other grounds, 556 U.S. 1256 (2009); see also
West v. Atkins, 487 U.S. 42, 48 (1988); 42 U.S.C. § 1983.
A.

Claims Against HCF and the City and County of Honolulu
“The Eleventh Amendment bars suits for money damages in federal court

against a state, its agencies, and state officials acting in their official capacities.”
Aholelei v. Dep’t of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Defendants
named in their official capacities are subject to suit under § 1983 only “for
prospective declaratory and injunctive relief . . . to enjoin an alleged ongoing
violation of federal law.” Oyama v. Univ. of Haw., 2013 WL 1767710, at *7 (D.
Haw. Apr. 23, 2013) (quoting Wilbur v. Locke, 423 F.3d 1101, 1111 (9th Cir.
2005), abrogated on other grounds by Levin v. Commerce Energy Inc., 560 U.S.
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413 (2010)); see also Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71
(1989) (“[A] suit against a state official in his or her official capacity is not a suit
against the official but rather is a suit against the official’s office.”); Ex parte
Young, 209 U.S. 123 (1908).
Thompson names Hope and Smith in their individual and official capacities,
and seeks damages and prospective injunctive relief. Hope and Smith are alleged
to be HCF prison guards, which is overseen by DPS, a state agency. See
http://dps.hawaii.gov. These claims are sufficient to allege claims for injunctive
relief against the State and for damages against Hope and Smith.
It appears that Thompson mistakenly alleges claims against the City and
County of Honolulu, which generally has no jurisdiction over the conditions of
confinement within a DPS facility. Nothing within the Complaint suggests that
the City and County of Honolulu is involved in Thompson’s allegations. Claims
against the City and County of Honolulu are DISMISSED.
Moreover, claims under § 1983 must be directed at “persons,” and neither a
jail nor a prison facility is a “person” amenable to suit under § 1983. See Allison
v. Cal. Adult Auth., 419 F.2d 822, 823 (9th Cir. 1969) (finding that San Quentin
Prison is not a “person” subject to suit under § 1983); cf. Brown v. Cal. Dep’t of
Corr., 554 F.3d 747, 752 (9th Cir. 2009) (holding California Department of
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Corrections and Board of Prison Terms are entitled to Eleventh Amendment
immunity). HCF is not a person subject to suit under § 1983 and Thompson’s
claims against HCF are DISMISSED.
B.

Access to the Court
Inmates have a constitutional right to access the courts. Bounds v. Smith,

430 U.S. 817, 821 (1977). This right is limited to direct criminal appeals, habeas
petitions, and civil rights actions. Lewis v. Casey, 518 U.S. 343, 354 (1996).
Claims for denial of access to the courts may arise from the frustration or
hindrance of “a litigating opportunity yet to be gained” (forward-looking access
claim) or from the loss of a meritorious suit that cannot now be tried
(backward-looking claim). Christopher v. Harbury, 536 U.S. 403, 413-15 (2002).
For backward-looking claims, a plaintiff “must show: (1) the loss of a
‘nonfrivolous’ or ‘arguable’ underlying claim; (2) the official acts frustrating the
litigation; and (3) a remedy that may be awarded as recompense but that is not
otherwise available in a future suit.” Phillips v. Hust, 477 F.3d 1070, 1076 (9th
Cir. 2007) (citing Christopher, 536 U.S. at 413-14), overruled on other grounds
by Hust v. Phillips, 555 U.S. 1150 (2009).
To have standing to bring this claim, Thompson must allege that he suffered
an actual injury. Lewis, 518 U.S. at 351-52; Vandelft v. Moses, 31 F.3d 794, 798
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(9th Cir. 1994). That is, Thompson must show that he has been denied the ability
to litigate a non-frivolous claim attacking a conviction, sentence, or conditions of
confinement. Christopher, 536 U.S. at 415; Lewis, 518 U.S. at 353 & n.3. He
need not show that he will be successful on the merits of his claims, but only that
his claims are not frivolous. Allen v. Sakai, 48 F.3d 1082, 1085-86 & n.12 (9th
Cir. 1994). The Court has determined that Thompson’s claims in Civ. No. 1:16cv-00128 are not frivolous, id., ECF No. 5.
Inmates do not have a freestanding right to attend a law library or receive
legal assistance, but prison officials must provide some means of ensuring their
access to the courts or to otherwise redress grievances. Lewis, 518 U.S. at 351.
Providing access to computer kiosks, legal books, treatises, cases, and court or
prison grievance forms are other means to protect these rights.
Thompson states that Hope and Smith have denied him attendance at the
law library, use of legal kiosks, court and grievance forms, certification of his trust
account balance (which is normally required to proceed IFP in federal court), and
his legal documents and mail. He alleges this is interfering with his ability to
litigate his claims in Civ. No. 1:16-cv-00128. The docket in Civ. No. 1:16-cv00128 shows that Thompson failed to respond to Defendant’s November 18, 2016
First Request for Answers to Interrogatories. See Mot., ECF No. 25-1. Defendant
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has now moved to compel this discovery. Id. Based on Thompson’s timeline and
allegations, this suggests the possibility that Thompson either did not receive
Defendant’s request, or if he received it, is unable to adequately respond due to the
restrictions he describes. This is sufficient to state a claim for interference with
Thompson’s right of access to the court and/or redress of grievances against
Defendants Hope and Smith. The Court orders the Complaint to be served on
Defendants Hope and Smith and they SHALL file a response.
V. SERVICE ORDER
Service of the Complaint is appropriate for Defendants Henry Hope and
Brandon Smith.
(1) The Clerk shall send Thompson one copy of the endorsed Complaint,
two completed summons, two USM-285 forms, four Notice of Lawsuit and
Request for Waiver of Service for Summons forms (AO 398), four Waiver of
Service of Summons forms (AO 399), and an instruction sheet. The Clerk shall
send a copy of this order to the U.S. Marshal.
(2) Plaintiff shall complete the forms and send them to the U.S. Marshal.
Because Hope and Smith are DPS employees, Plaintiff should name Hope and
Smith on the forms, but address the forms to Shelley Nobriga, DPS Litigation
Coordinator, 919 Ala Moana Blvd., 4th Floor Honolulu, HI 96814, and send
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them to the U.S. Marshal. Ms. Nobriga is authorized to accept one complaint
and the waiver of service forms for DPS Defendants.
(3) The U.S. Marshal shall mail a copy of the Complaint, two completed
Notice of Lawsuit and Request for Waiver of Service forms (AO 398), and four
completed Waiver of Service of Summons forms (AO 399) (two for each
defendant) to Ms. Nobriga.
(4) The U.S. Marshal shall retain the summons and a copy of the
Complaint. Defendants shall return the Waiver of Service forms to the U.S.
Marshal within thirty days from the date the requests are mailed. If the Waiver of
Service of Summons forms and requests for waiver of service are returned as
undeliverable, the U.S. Marshal shall immediately file them with the court.
(5) If Hope and Smith fail to return the Waiver of Service of Summons
forms within thirty days, the U.S. Marshal shall personally serve them and
command all necessary assistance from DPS. Within ten days after personal
service is effected, the U.S. Marshal shall file the return of service for Hope and
Smith with evidence of any attempts to secure a waiver of service of summons and
the costs incurred in effecting service. These costs will be taxed against the
personally-served Defendant.

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(6) Hope and Smith shall file an answer or responsive motion within sixty
days after the request for waiver of service was sent (if formal service is waived),
or twenty days after personal service.
(7) Thompson shall inform the court of any change of address in writing.
The notice shall not include requests for other relief. Failure to file such notice
may result in the dismissal of the action for failure to prosecute.
(8) After the Complaint is served, Thompson’s documents are deemed
served on Defendants or their attorney(s) when they are electronically filed by the
court.
VI. CONCLUSION
(1) Thompson’s IFP application is provisionally GRANTED. DPS SHALL
send a certification of the balance in Thompson’s prison account to the court on or
before January 31, 2017. DPS shall thereafter collect and remit to the court
monthly payments equaling 20% of Thompson’s preceding month’s income or
balance when his account exceeds $10.00, until the $350.00 civil filing fee is paid
in full.
(2) Claims against the City and County of Honolulu and the Halawa
Correctional Facility are DISMISSED.
(3) Thompson SHALL request the U.S. Marshal to effect service on
Defendants Hope and Smith as directed above. The Clerk is DIRECTED to send

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Thompson the service forms detailed above so that he may comply with this
Order.
(4) Hope and Smith SHALL file a response to Thompson’s Complaint.
(5) The Clerk is DIRECTED to send a copy of this order to Plaintiff, HCF
Warden Francis Sequeira, DPS Litigation Coordinator Shelley Nobriga, Esq., the
U.S. Marshal, and the District of Hawaii’s Financial Department.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 18, 2017.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Thompson v. City and Cty. of Honolulu, 1:17 cv 00002 JMS/KAC; Svc 2017

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