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

Filing 23

ORDER DISMISSING SECOND AMENDED COMPLAINT AND ACTION; DENYING MOTIONS FOR PRELIMINARY INJUNCTION. Signed by JUDGE LESLIE E. KOBAYASHI on 08/01/2017. (eps, )CERTIFICATE OF SERVICEParticipants registered to rece ive 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 August 2, 2017

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

)
)
)
Plaintiff,
)
)
vs.
)
)
SGT. IKEGAMI, et al.,
)
)
Defendants,
)
__________________________ )

CIV. NO. 17-00235 LEK-KSC
ORDER DISMISSING SECOND
AMENDED COMPLAINT AND
ACTION; DENYING MOTION FOR
PRELIMINARY INJUNCTION

ORDER DISMISSING SECOND AMENDED COMPLAINT AND ACTION;
DENYING MOTIONS FOR PRELIMINARY INJUNCTION
Before the Court are Plaintiff Thad J. Thompson’s
Second Amended Complaint (“SAC”) and third Motion for
Preliminary Injunction.1

ECF Nos. 19, 20.

Thompson

Defendants HCF Sergeant (Sgt.) Ikegami, Counselor
Katherine Torres, Captain (Capt.) Paleka, and Law
Librarian Marina violated his First Amendment right to
access the court.
Thompson’s SAC is DISMISSED.

Because it is clear

that he cannot amend to adequately state a claim,
despite being given the opportunity to do so, this

1

Thompson is incarcerated at the Halawa Correctional
Facility (“HCF”) and is proceeding in forma pauperis.

dismissal is with prejudice.

Thompson’s Motion for

Preliminary Injunction is 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).

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,
2

555 (2007)).

Moreover, a plaintiff must demonstrate

that each defendant personally participated in the
deprivation of his rights.
930, 934 (9th Cir. 2002).

Jones v. Williams, 297 F.3d
That is, 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.

See Monell v. Dep’t of Social Servs., 436 U.S.

658 (1978); Rizzo v. Goode, 423 U.S. 362, 371-72, 377
(1976).
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
3

Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir.
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).
When it is clear the complaint cannot be saved by
amendment, dismissal without leave to amend is
appropriate.

Sylvia Landfield Trust v. City of L.A.,

729 F.3d 1189, 1196 (9th Cir. 2013).
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

4

U.S. 1256 (2009); see also West v. Atkins, 487 U.S. 42,
48 (1988); 42 U.S.C. § 1983.
A.

Thompson’s Claims2
On or about May 15, 2017, Thompson was transferred

to the High Special Housing Unit (HSHU), where he was
told that he could keep only three inches of paperwork
in his cell per Sgt. Ikegami’s instructions.

Thompson

protested that he needed his paperwork and legal books
to properly litigate his pending action, Thompson v.
Afamasaga, No. 1:16-cv-00128 JMS-KSC (D. Haw. 2016).
He also says he was denied adequate writing supplies.
Thompson immediately began requesting his legal
materials and writing supplies from Defendants Ikegami,
Paleka, and Torres.

Torres allegedly told Thompson

there were no manilla envelopes, because “times are
hard.”

SAC, ECF. No. 20, PageID #118.

Thompson also

asked Torres to forward his requests for law library
and kiosk sessions to Defendant Marina, but says he has
attended the law library only once in the past eight

2

For the purposes of this Order, Thompson’s statement of
fact is accepted as true.
5

and a half weeks.

He claims that he can have copies

made only at the law library.
Thompson suggests these restrictions have impeded
his litigation in No. 1:16-cv-00128 JMS-KSC.

He states

that he has been “forced” to draw lines on the backs of
other paper, make manilla envelopes, and hand copy his
documents.

SAC, ECF No. 20, PageID #119.

He points to

an “imminent” Motion Requesting Service of Subpoena and
a settlement conference scheduled for September 12,
2017, in No. 1:16-cv-00128 JMS-KSC, arguing these show
that he has suffered an actual injury to his access to
the court.

See id., ECF No. 57 (Mot.) .

Since filing this action, Thompson has filed two
other civil rights suits in this court.

See Thompson

v. Hawaii Dep’t of Public Safety, No. 1:17-cv-00250
DKW-KJM (D. Haw., filed May 30, 2017), and Thompson v.
Torres, No. 1:17-cv-00319 DKW-RLP (D. Haw., filed
July 7, 2017).

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B.

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’
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).
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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).
C.

Analysis
Thompson has not suffered an actual injury to his

right to access to the court.

First, in No.

1:16-cv-00128, Thompson was able to file his Motion
Requesting Service of Subpeona by the U.S. Marshal’s
Service, which the court reviewed and granted in part,
and one subpoena has been already been served.
Nos. 57, 68, 74.

See ECF

The alleged lack of legal materials

and writing supplies did not hinder the resolution of
this Motion.

The settlement conference for which

Thompson must prepare is more than a month away, and he
may request a continuance if required.

And, since

Thompson was moved to the HSHU, he has submitted three
motions and certificates of service, two letters, and
attended a status conference in this action.
Nos. 57, 59, 63, 64, 71, 72.

See ECF

Thompson need not make

copies of his documents; the court accepts Thompson’s
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original documents and returns a copy to him.

He has

not been limited in his ability to litigate No.
1:16-cv-00128.
Second, Thompson was able to prepare and send his
initial documents in the present lawsuit on May 19,
2017, four days after he entered the HSHU.

He has

filed three Complaints, three motions for preliminary
injunction and briefs, a motion to file a supplemental
complaint, two applications to proceed in forma
pauperis, and several transmittal letters.
Nos. 1, 2, 9-14, 17 19, 20.

See ECF

Thompson has clearly

received sufficient envelopes, paper, and postage to
prosecute this action and the other restrictions abut
which he complains have not impeded litigation herein.
Third, in No. 1:17-cv-00250 DKW-KJM, Thompson has
filed three pleadings, two motions for preliminary
injunction and briefs, and two applications to proceed
in forma pauperis.

ECF Nos. 1, 2, 5, 7, 9, 12.

There

is no indication that he has been obstructed in
bringing his

claims in that action to the court or in

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presenting his legal arguments in support of his
claims.
Fourth, Thompson’s alleged inability to make
copies, receive writing supplies, or visit the law
library has not obstructed his ability to file his
claims in No. 1:17-cv-00319 DKW-RLP, in which he has
filed a complaint, motion for injunctive relief,
letter, in forma pauperis application, and certificates
of service.

ECF Nos. 1, 3-6.

Thompson again fails to show any actual injury to
his right of access to the court.

Because further

amendment is clearly futile, the SAC is DISMISSED with
prejudice for failure to state a claim.
III.

MOTION FOR PRELIMINARY INJUNCTION

In light of the Court’s discussion, Thompson cannot
“succeed on the merits” of his claims, will not “suffer
irreparable harm in the absence of preliminary relief,”
and cannot show “that the balance of equities tips in
his favor,” or that injunctive relief here “is in the
public interest.”

Winter v. Nat. Resources Def.

Council, 555 U.S. 7, 20 (2008); see also Stormans, Inc.
10

v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009).
Thompson’s Motion for Preliminary Injunction is DENIED.
IV.

28 U.S.C. § 1915(g)

Thompson is notified that this dismissal may count
as a “strike” under the “3-strikes” provision of 28
U.S.C. § 1915(g).3

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).
V.
(1)

CONCLUSION

The Second Amended Complaint is DISMISSED for

failure to state a claim pursuant to 28 U.S.C.

3

Thompson says he filed another action, Thompson v. Burns,
No. 2:13-cv-01715-SPL (D. Ariz., terminated Sept. 4, 2014), but
does not state that he incurred a strike therein. See id., ECF
No. 14 (“[C]omplaint and action are dismissed with prejudice for
failure to state a claim. This dismissal may count as a “strike”
under 28 U.S.C. § 1915(g).”). See http://pacer.psc.uscourts.gov.
(last visited July 28, 2017).
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§§ 1915(e)(2) and 1915A(b).

Because Thompson has

already been given leave to amend and further leave to
amend is futile, this dismissal is with prejudice.
(2)

Thompson is NOTIFIED that this dismissal may

result in a strike pursuant to 28 U.S.C. § 1915(g).
(3) Thompson’s Motion for Preliminary Injunction is
DENIED.
(4) The Clerk shall close the file and terminate
this action.
IT IS SO ORDERED.
DATED: HONOLULU, HAWAII, August 1, 2017.

/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 SAC, dny PI)

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