Thompson v. State of Hawaii Department of Public Safety et al

Filing 16

ORDER DISMISSING FIRST AMENDED COMPLAINT AND DENYING MOTIONS FOR PRELIMINARY INJUNCTION re 12 re 2 Motion for Preliminary Injunction re 9 Motion for Preliminary Injunction. Signed by JUDGE LESLIE E. KOBAYASHI on 07/03/2017. (1) The Complaint is DISMISSED for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b).(2) Thompson may file an amended complaint curing the deficiencies noted above on or before August 2, 2017. Failure to cure these deficiencies will result in dismissal of this action and Thompson shall incur a strike pursuant to 28 U.S.C. § 1915(g).(3) Thompson's Motions for Preliminary Injunction, ECF Nos. 2 and 9 , are DENIED.(4) The Clerk is directed to mail Thompson a prisoner civil rights complaint form so that he can comply with the directions in this Order. (eps, )CERTIFICATE OF SERVICEParticipants registered t o 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 served by first class mail on the date of this docket entry pursuant to the Court's Order

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

)
)
)
Plaintiff,
)
)
vs.
)
)
HAWAII DEP’T OF PUBLIC
)
SAFETY, HALAWA
)
CORRECTIONAL FACILITY,
)
SGT. IKEGAMI, COUNSELOR
)
TORRES, CPT. PALEKA,
)
)
Defendants,
)
__________________________ )

CIV. NO. 17-00235 LEK-KSC
ORDER DISMISSING FIRST
AMENDED COMPLAINT AND
DENYING MOTIONS FOR
PRELIMINARY INJUNCTION

ORDER DISMISSING FIRST AMENDED COMPLAINT AND DENYING
MOTIONS FOR PRELIMINARY INJUNCTION
Before the Court are Plaintiff Thad J. Thompson’s
First Amended Complaint (“FAC”), ECF No. 12, and two
Motions for Preliminary Injunction.1

ECF Nos. 2, 9.

Thompson is incarcerated at the Halawa Correctional
Facility (“HCF”) and is proceeding in forma pauperis.
He names the Hawaii Department of Public Safety
(“DPS”), HCF, HCF Sergeant Ikegami, Counselor Torres,

1

Thompson’s FAC supersedes his original Complaint. See
Lacey v. Maricopa Cty., 693 F.3d 896, 907, n.1 (9th Cir. 2012)
(en banc); see also ECF No. 15 (clarifying the FAC is the
operative pleading herein).

and Captain Paleka as Defendants in their individual
and official capacities.

Thompson alleges that

Defendants violated his constitutional right to access
the court.
For the following reasons, Thompson’s FAC is
DISMISSED with leave granted to amend and his Motions
for Preliminary Injunction are DENIED.
I.

SCREENING

Federal courts must screen all cases in which
prisoners seek redress from a governmental entity,
officer, or employee, or seek to proceed without
prepayment of the civil filing fees.
§§ 1915(b)(2) and 1915A(a).

See 28 U.S.C.

The court must identify

cognizable claims and dismiss those claims that are
frivolous, malicious, fail to state a claim on which
relief may be granted, or seek monetary relief from a
defendant who is immune from such relief.

Id. at

§§ 1915(b)(2) and 1915A(b).
A complaint 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).
2

Detailed factual allegations are not required, but
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007)).

Moreover, a plaintiff must demonstrate

that each defendant personally participated in the
deprivation of his rights.

Jones v. Williams, 297 F.3d

930, 934 (9th Cir. 2002).
Pro se prisoners’ pleadings must be liberally
construed and given the benefit of any doubt.
Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir.
2013); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.
2010).

However, “the liberal pleading standard . . .

applies only to a plaintiff’s factual allegations.”
Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989).
“[A] liberal interpretation of a civil rights complaint
may not supply essential elements of the claim that
were not initially pled.”

Bruns v. Nat’l Credit Union

Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting
Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir.
3

1982)).

A plaintiff must identify specific facts

supporting the existence of substantively plausible
claims for relief.

Johnson v. City of Shelby, 135 S.

Ct. 346, 347 (2014) (per curiam) (citation omitted).
Leave to amend should be granted if it appears possible
that the plaintiff can correct the complaint’s defects.
Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
II.

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.
Additionally, a plaintiff must allege that he
suffered a specific injury as a result of a particular
defendant’s conduct and an affirmative link between the
injury and the violation of his rights.
4

See Monell v.

Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v.
Goode, 423 U.S. 362, 371-72, 377 (1976).

“A person

‘subjects’ another to the deprivation of a
constitutional right, within the meaning of § 1983, if
he does an affirmative act, participates in another’s
affirmative acts or omits to perform an act which he is
legally required to do that causes the deprivation of
which complaint is made.”

Johnson v. Duffy, 588 F.2d

740, 743 (9th Cir. 1978).
A.

Thompson’s Claims
Thompson alleges that Defendants violated his First

Amendment right of access to the courts by limiting the
amount of legal paperwork he is allowed to keep in his
cell to three inches, denying him a “reasonable amount”
of writing paper, and any manilla envelopes.
No. 12, PageID #51.

FAC, ECF

He suggests that these

restrictions have or will impede his litigation in
Thompson v. Afamasaga, Civ. No. 1:16-cv-00128 JMS-KSC
(D. Haw. 2016), although he points to no specific
instance where his efforts to prosecute Civ. No.
1:16-cv-00128 has been hindered or obstructed.
5

B.

Claims Against HCF and DPS Are Dismissed
“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. 413
(2010)); see also Will v. Mich. Dep’t of State Police,
491 U.S. 58, 70-71 (1989).
Moreover, “state agencies . . . are not ‘persons’
within the meaning of § 1983, and are therefore not
amenable to suit under that statute.”

Maldonado v.

Harris, 370 F.3d 945, 951 (9th Cir. 2004) (citing Will,
491 U.S. at 70).

Nor are jail or prison facilities

“persons” amenable to suit under § 1983.
6

See

Allison v. California Adult Auth., 419 F.2d 822, 823
(9th Cir. 1969).
Neither HCF nor DPS are “persons” under § 1983 and
they are DISMISSED.

See Christman v. Micheletti, 302

F. App’x 742, 743 (9th Cir. 2008) (affirming dismissal
of claims against the California Department of
Corrections and Rehabilitation).
C.

No Denial of the Right of 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.
Casey, 518 U.S. 343, 354 (1996).

Lewis v.

Claims for the 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’
7

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).

Thus, to have standing

to bring this type of claim, an inmate must allege that
he has suffered an actual injury.

Lewis, 518 U.S. at

351-52; Vandelft v. Moses, 31 F.3d 794, 798 (9th Cir.
1994).
1.

Analysis

Thompson was moved to the HCF High Security Unit on
May 15, 2017.

When he arrived, Correctional Officer

Sarkissian told him that he was allowed to keep only
three inches of paperwork in his cell.

Thompson told

Sarkissian that he needed all of his paperwork to
adequately litigate Civ. No. 1:16-cv-00128.

Sarkissian

replied that the decision to override this rule was up
to Defendant Sgt. Ikegami.

Thompson submitted eight

requests to Defendants Ikegami and Captain Paleka on
8

May 15, 16, 17, and 18, 2017, asking to keep all of his
legal work in his cell.
Thompson also submitted “multiple” requests for
writing supplies, including ten sheets of paper, three
envelopes, and a manilla envelope to Defendant Torres
during this period.

On May 18, 2017, Torres told

Thompson that there were no manilla envelopes because
“times are hard!”

FAC, ECF No. 12, PageID #51.

The

next day, May 19, 2017, Thompson signed his original
Complaint and first Motion for Preliminary Injunction
and gave it to prison authorities for mailing to the
court.

See ECF Nos. 1, 2.

The court received and

filed it on May 24, 2017.
On the facts presented, Thompson fails to show any
actual injury of his right to access the courts.
First, Thompson identifies no pending motions or
deadlines in Civ. No. 1:16-cv-00128 that were actually
hindered by the restriction on the amount of legal
paperwork he is allowed to keep in his cell or the
limited paper and envelopes he allegedly received.

The

docket in Civ. No. 1:16-cv-00128 reveals there were no
9

imminent deadlines for filing motions or other
documents in the case during or since the time in
question – May 15, 2017 until the present.

The case

records also show that Thompson has filed two motions
and two letters since May 15, 2017, see ECF No. 57
(Motion Requesting Service of Subpoena and letter,
filed May 26, 2017); No. 59 (Motion for Appointment of
Counsel and letter, filed May 30, 2017), and that he
participated in a status conference before Magistrate
Judge Chang on June 29, 2017.

ECF No. 63.

The

limitations he challenges have not affected his ability
to litigate Civ. No. 1:16-cv-00128.
Second, Thompson was able to file the instant
action on May 24, 2017, within nine days of the date he
entered the HCF High Security Unit.

He has filed two

Complaints, ECF Nos. 1, 12, two Motions for Preliminary
Injunction and briefs in support, ECF Nos. 2, 9, two
applications to proceed in forma pauperis, ECF Nos. 7,
13, and several transmittal letters, ECF Nos. 10, 14,
in this action.

Clearly, Thompson has received

envelopes, paper, and postage since May 15, 2017, and
10

the restriction on the amount of legal work allowed in
his cell has not impeded litigation in this action.2
Finally, Thompson has commenced a third action,
Thompson v. Dep’t of Public Safety, Civ. No.
1:17-cv-00250 DKW-KJM (D. Haw. May 30, 2017), since he
has allegedly been subjected to a denial of access to
the courts, filed four days after the present action
was filed.

In Civ. No. 1:17-cv-00250, Thompson has

filed two Complaints, ECF Nos. 1, 7, a Motion for
Preliminary Injunction, ECF No. 2, and two applications
to proceed in forma pauperis, ECF Nos. 5, 9.

Again,

there is no indication that his ability to bring his
claims to the court have been obstructed by the
restrictions he challenges herein.
Thompson fails to show any actual injury to his
right of access to the court.

Accordingly the FAC is

DISMISSED for failure to state a claim, with leave
granted to amend.

2

Most of Thompson’s documents are handwritten on lined
paper, clearly indicating he is receiving writing supplies.
11

D.

Failure to Exhaust Administrative Remedies
The Prison Litigation Reform Act of 1995 (“PLRA”)

provides that “[n]o action shall be brought with
respect to prison conditions under [42 U.S.C. § 1983],
or any other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until such
administrative remedies as are available are
exhausted.”

42 U.S.C. § 1997e(a).

Exhaustion in

prisoner cases covered by § 1997e(a) is mandatory
regardless of the type of relief sought.

See Porter v.

Nussle, 534 U.S. 516, 524 (2002); Booth v. Churner, 532
U.S. 731, 739, 741 (2001) (holding that prisoners must
exhaust administrative remedies regardless of whether
they seek injunctive relief or money damages, even
though the latter is unavailable); accord Jones v.
Bock, 549 U.S. 199, 211 (2007); see also Panaro v. City
of North Las Vegas, 432 F.3d 949, 954 (9th Cir. 2005)
(The PLRA “represents a Congressional judgment that the
federal courts may not consider a prisoner’s civil
rights claim when a remedy was not sought first in an
available administrative grievance procedure.”).
12

Failure to exhaust is “an affirmative defense the
defendant must plead and prove.”

Jones, 549 U.S. at

216; Albino v. Baca, 747 F.3d, 1162, 1166 (9th Cir.
2014).

“In the rare event that a failure to exhaust is

clear from the face of the complaint, a defendant may
move for dismissal under Rule 12(b)(6),” Albino, 747
F.3d at 1166, or the court may dismiss sua sponte,
Bock, 549 U.S. at 215 (“A complaint is subject to
dismissal for failure to state a claim if the
allegations, taken as true, show the plaintiff is not
entitled to relief.”); see also Salas v. Tillman, 162
Fed. App’x 918 (11th Cir. 2006) (sua sponte dismissal
of prisoner’s civil rights claims for failure to
exhaust was not abuse of discretion; prisoner did not
dispute that he timely failed to pursue his
administrative remedies, and a continuance would not
permit exhaustion because any grievance would be
untimely).
Thompson explicitly states in both of his pleadings
that he did not exhaust the prison’s administrative
grievance process before he submitted his pleadings to
13

the court.

See Compl., ECF No. 1, PageID #2; FAC, ECF

No. 12, PageID #50.

He asserts that, because he seeks

preliminary injunctive relief for the obstruction of
his right to access the court, he could not complete
the grievance process before commencing this action.
Moreover, because Thompson commenced this action within
four days of the date that he alleges his right of
access to the court was obstructed, it is clear that he
could not have exhausted his claims before commencing
this action.
Because Thompson concedes that he failed to exhaust
his claims before commencing this action, he is
NOTIFIED that they are subject to dismissal.
III.

MOTIONS FOR PRELIMINARY INJUNCTION

Preliminary injunctive relief is appropriate when
the movant demonstrates that “he is likely to succeed
on the merits [of the underlying action], that he is
likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips
in his favor, and that an injunction is in the public
interest.”

Winter v. Nat. Resources Def. Council, 555
14

U.S. 7, 20 (2008); see also Stormans, Inc. v. Selecky,
586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter).
Injunctive relief “is an extraordinary remedy, never
awarded as of right.”

Winter, 555 U.S. at 24.

The principal purpose of preliminary injunctive
relief is to preserve the court’s power to render a
meaningful decision on the merits of the case.

See 11A

Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure, § 2947 (2d ed. 2010).

That is,

to preserve the status quo pending a determination on
the merits.

Sierra Forest Legacy v. Rey, 577 F.3d

1015, 1023 (9th Cir. 2009).

The standards governing

the issuance of temporary restraining orders are
“substantially identical” to those governing the
issuance of preliminary injunctions.

Stuhlbarg Intern.

Sales Co., Inc. v. John D. Brushy and Co., Inc., 240
F.3d 832, 839 n.7 (9th Cir. 2001); Am. Trucking Ass'n,
Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th
Cir. 2009).
The propriety of a request for injunctive relief
hinges on a significant threat of irreparable injury
15

that must be imminent in nature.

Caribbean Marine

Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir.
1988).

Speculative injury does not constitute

irreparable harm.

See id.; Goldie’s Bookstore, Inc. v.

Superior Court, 739 F.2d 466, 472 (9th Cir. 1984).

A

presently existing actual threat must be shown,
although the injury need not be certain to occur.
Zenith Radio Corp. v. Hazeltine Research, Inc., 395
U.S. 100, 130-31 (1969); FDIC v. Garner, 125 F.3d 1272,
1279-80 (9th Cir. 1997).
In cases brought by prisoners involving conditions
of confinement, any preliminary injunction “must be
narrowly drawn, extend no further than necessary to
correct the harm the court finds requires preliminary
relief, and be the least intrusive means necessary to
correct the harm.”

18 U.S.C. § 3626(a)(2).

In light of the Court’s discussion and dismissal of
the FAC, Thompson cannot show that (1) he is likely to
succeed on the merits of his claims; (2) he will suffer
irreparable harm in the absence of preliminary
injunctive relief; (3) the equities tip in his favor;
16

or (4) an injunction is in the public interest.
Thompson’s Motions for Preliminary Injunction, ECF Nos.
2 and 9, are DENIED.
IV.

LEAVE TO AMEND

The Complaint is DISMISSED with leave granted to
amend.

Thompson may file an amended complaint on or

before [INSERT DATE], 2017, that cures the deficiencies
noted above.

An amended complaint generally supersedes

the previous complaint.

See Lacey v. Maricopa Cty.,

693 F.3d 896, 907, n.1 (9th Cir. 2012) (en banc).
Thus, an amended complaint should stand on its own
without incorporation or reference to a previous
pleading.

Defendants not named and claims dismissed

without prejudice that are not realleged in an amended
complaint may later be deemed voluntarily dismissed.
Id. at 928 (stating claims dismissed with prejudice
need not be repled in an amended complaint to preserve
them for appeal, but claims that are “voluntarily
dismissed” are considered “waived if not repled”).

17

V.

28 U.S.C. § 1915(g)

If Thompson fails to file an amended complaint, or
is unable to amend his claims to cure their
deficiencies, this dismissal shall count as a “strike”
under the “3-strikes” provision of 28 U.S.C. § 1915(g).
Under the 3-strikes provision, a prisoner may not bring
a civil action or appeal a civil judgment in forma
pauperis 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).
VI.
(1)

CONCLUSION

The Complaint is DISMISSED for failure to

state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A(b).
(2)

Thompson may file an amended complaint curing

the deficiencies noted above on or before August 2,
2017.

Failure to cure these deficiencies will result
18

in dismissal of this action and Thompson shall incur a
strike pursuant to 28 U.S.C. § 1915(g).
(3) Thompson’s Motions for Preliminary Injunction,
ECF Nos. 2 and 9, are DENIED.
(4) The Clerk is directed to mail Thompson a
prisoner civil rights complaint form so that he can
comply with the directions in this Order.
IT IS SO ORDERED.
DATED: July 3, 2017 at Honolulu, Hawai’i.

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

Thompson v. Dep’t of Public Safety, 1:17-cv-00235 LEK/KSC; Scrn 2017 Thompson 17-235
lek (dsm FAC, dny Mand)

19