Thompson v. Capt. Paleka, et al

Filing 4

ORDER DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING COMPLAINT. "Thompsons IFP Application is DENIED pursuant to 28 U.S.C. § 1915(g).Thompsons Complaint is DISMISSED with leave granted toamend pursuant to 28 U.S.C. §§ 19 15(e)(2) and 1915A(b). Because Thompson has accrued three strikes pursuant to 28 U.S.C. § 1915(g), and because he fails to allege sufficient facts to support an imminent danger of serious physical injury, his in forma pauperis application is DEN IED. Failure to pay the civil filing fee OR file an amended pleading that plausibly alleges imminent danger of serious physical injury AND cures the original Complaints noted deficiencies on or before December 13, 2017, shall result in DISMISSAL of t his action and may constitute a strike under 28 U.S.C. § 1915(g)." Signed by JUDGE SUSAN OKI MOLLWAY on 11/13/17. (cib, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications rec eived 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. Copy of order, instruction for filing a prisoner civil right complaint mailed to Pro Se Plaintiff Thad Thompson

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

)
)
Plaintiff,
)
)
vs.
)
)
CAPT. PALEKA, et al.,
)
)
Defendants.
)
__________________________ )

CIV. NO. 17-00531 SOM-KJM
ORDER DENYING IN FORMA
PAUPERIS APPLICATION AND
DISMISSING COMPLAINT

ORDER DENYING IN FORMA PAUPERIS APPLICATION
AND DISMISSING COMPLAINT
Before the court is pro se Plaintiff Thad
Thompson’s prisoner civil rights Complaint and in forma
pauperis application (“IFP Application”).
2.

ECF Nos. 1,

Thompson claims that six Halawa Correctional

Facility (“HCF”) or Department of Public Safety (“DPS”)
prison officials violated his rights under the Eighth
Amendment.1

For the following reasons, Thompson’s IFP

Application is DENIED pursuant to 28 U.S.C. § 1915(g).
Thompson’s Complaint is DISMISSED with leave granted to
amend pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)

1

Thompson names HCF Capt. Paleka, Maintenance Supervisor,
Medical Supervisor, Chief Antonio, Warden Harrington, and DPS
Grievance Coordinator Shari Kimoto in their individual and
official capacities as Defendants.

as limited below.
I.

THOMPSON’S CLAIMS2

On or about July 7 and 26, and August 27, 2017,
Thompson submitted “requests” to Capt. Paleka and the
HCF Maintenance Supervisor notifying them that the High
Security Unit (“HSU”) shower was extremely dirty.
alleges that he received no reply.

He

Compl., ECF No. 1,

PageID #7.
Between August 7 and 27, 2017, Thompson submitted
“regular requests” to Capt. Paleka, Chief Antonio, and
Warden Harrington complaining that HCF prison officials
were not responding to any of his requests.

Id.

On September 2, 2017, Thompson had an “incident” at
HCF that caused him lower back pain.

Id.

Thompson

says that he submitted multiple medical requests
regarding lower back and other pain relating to the
incident.

He does not say whether he received or was

denied medical care for his back or provide any further
details about this incident.
2

Thompson’s allegations of fact are accepted as true and
construed in the light most favorable to him. See Nordstrom v.
Ryan, 762 F.3d 903, 908 (9th Cir. 2014).

2

On September 8, 2017, Thompson developed a skin
rash that he attributes to the dirty HSU showers.

He

does not describe the rash, but fellow inmate Raymond
Sargent says he had contracted the same rash a few days
earlier.

See Sargent Dec., ECF No. 1-1.

Sargent

initially thought his rash was from bugs in his cell,
but now believes it was from the dirty HSU shower.
Sargent was given “cream [and] pills” and a “Medical
Needs Memo” that allowed him to exchange his clothes
and get supplies to clean his cell.

Id.

On September 8 and 11, 2017, Thompson submitted two
medical requests regarding his rash.
requests were not answered.

He alleges his

Thompson does not,

however, allege that he received no treatment for his
rash.
On September 23, 2017, Thompson requested
permission to see an outside “Nerve” specialist for his
back.

Compl., ECF No. 1, PageID #7.

He was told that

he was scheduled for an appointment with a medical
provider.

Thompson complains that the provider was not

an “Outside Specialist,” and that he had not seen this
3

provider as of the date that he signed the Complaint
(October 10, 2017).

Id.

Thompson alleges that Defendants’ actions or
inactions violated his rights under the Eighth
Amendment.

He seeks compensatory and punitive damages,

declaratory relief, and a transfer to the Federal
Detention Center-Honolulu.
II.

28 U.S.C. § 1915(g)

Under 28 U.S.C. § 1915(g), a prisoner may not bring
a civil action in federal court without first paying
the filing fee, if three or more of his civil actions
or appeals have been dismissed as frivolous, malicious,
or failing to state a claim on which relief may be
granted.

There is an exception to this three-strikes

rule if the plaintiff’s pleadings show that he is in
imminent danger of serious physical injury.

28 U.S.C.

§ 1915(g).
Court records confirm that Thompson has filed three
previous civil actions while imprisoned that were
dismissed for failure to state a claim.

See PACER Case

Locator, http://pacer.psc.uscourts.gov (last visited
4

Nov. 8, 2017); see also Andrews v. King, 398 F.3d 1113,
1120-21 (9th Cir. 2005) (“Andrews I”) (stating “the
district 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”).

Those actions are: Thompson v. Dep’t of

Public Safety, No. 1:17-cv-00250 DKW-KJM (D. Haw. Aug.
2, 2017) (dismissed for failure to state a claim);
Thompson v. Dep’t of Public Safety, No. 1:17-cv-00235
LEK-KSC (D. Haw. Aug. 1, 2017) (same); and Thompson v.
Burns, No. 2:13-cv-01715-PHX-SPL (D. Ariz. July 14,
2014) (same; judgment entered Sept. 4, 2014).
The court has notified Thompson of each of these
dismissals.

See No. 1:17-cv-00235, Order, ECF No. 23,

PageID #146 n.3 (alerting Thompson to the strike that
he accrued in the District of Arizona in Thompson v.
Burns, No. 2:13-cv-01715); see also Thompson v.
Hamilton, No. 1:17-cv-00520 JMS-RLP (D. Haw. Oct. 27,
2017) (denying IFP and directing payment; providing
copies of the three orders in which Thompson accrued
strikes).

Thompson may not proceed in forma pauperis
5

in this action unless he was in imminent danger of
serious physical injury when he commenced this suit.
See Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir.
2007) (“Andrews II”) (holding that the imminent danger
exception is based on the alleged conditions at the
time the complaint was filed).
Thompson provides no information from which the
court can find that his rash or his lower back pain
constitutes imminent danger of serious physical injury.
Thompson does not allege that he is being denied
treatment by any Defendant for either condition.

He

alleges nothing that shows there is a genuine emergency
or a concrete threat of serious harm caused by either
infirmity.

Rather, Thompson’s primary complaints are

that he contracted the rash from a dirty shower, prison
officials denied his request to see an outside nerve
specialist for his back pain, and prison officials are
not properly responding to his requests and grievances.
While a court “should not conduct an overly detailed
inquiry into whether a particular danger is serious
enough under the serious physical injury prong,”
6

Andrews II, 493 F.3d at 1055, courts are not required
to “blindly accept a prisoner’s allegations of imminent
danger,” Taylor v. Watkins, 623 F.3d 483, 485 (7th Cir.
2010).
Nothing within the Complaint supports an inference
that Thompson is (or was) in imminent danger of serious
physical injury when he filed this action.

Nor has he

submitted facts showing a continuing practice that
injured him in the past that poses an “ongoing danger.”
Andrews II,

493 F.3d at 1057.

Thompson may not

proceed in forma pauperis in this action; his IFP
Application is DENIED.
Of course, Thompson may be able to allege
sufficient facts to meet the imminent danger of serious
physical injury exception.

The court will, therefore,

allow him to file an amended pleading.

If he

successfully shows that he is entitled to § 1915(g)’s
exception, the court will reconsider its decision to
deny the IFP Application.

In the alternative, Thompson

may submit the civil filing fee.

Before Thompson

submits an amended pleading or payment, however, he
7

should carefully consider the following evaluation of
his claims.
III.

SCREENING

The court must conduct a pre-answer, sua sponte
screening of prisoners’ pleadings pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A(b).

Claims that are frivolous,

malicious, fail to state a claim, or seek damages from
defendants who are immune from suit must be dismissed.
See Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.
2010) (discussing 28 U.S.C. § 1915A(b)); Lopez v.
Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)
(discussing 28 U.S.C. § 1915(e)(2)).
“The standard for determining whether a plaintiff
has failed to state a claim upon which relief can be
granted under § 1915(e)(2)(B)(ii) is the same as the
Federal Rule of Civil Procedure 12(b)(6) standard for
failure to state a claim.”

Watison v. Carter, 668 F.3d

1108, 1112 (9th Cir. 2012) (discussing dismissal under
§ 1915(e)(2)); see also Wilhelm v. Rotman, 680 F.3d
1113, 1121 (9th Cir. 2012) (discussing dismissal under
§ 1915A(a)).

Rule 12(b)(6) requires that a complaint
8

“contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its
face.”

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

(internal quotation marks omitted); Wilhelm, 680 F.3d
at 1121.
A claim is facially plausible when the facts pled
“allow the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 677 (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007)).

A claim need not

be probable, but there must be “more than a sheer
possibility that a defendant has acted unlawfully.”
Id.

“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not
suffice.”

Iqbal, 556 U.S. at 678.

“Determining

whether a complaint states a plausible claim for relief
[is] . . . a context-specific task that requires the
reviewing court to draw on its judicial experience and
common sense.”

Id.

Leave to amend must be granted if it appears the
plaintiff can correct the complaint’s defects.
9

Lopez,

203 F.3d at 1130.

Dismissal without leave to amend is

only appropriate when “it is clear that the complaint
could not be saved by any amendment.”

Sylvia Landfield

Trust v. City of L.A., 729 F.3d 1189, 1196 (9th Cir.
2013).
IV.

DISCUSSION

Thompson is proceeding under 42 U.S.C. § 1983.

“To

sustain an action under [§ 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).
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.

See Monell v.

Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v.
Goode, 423 U.S. 362, 371-72, 377 (1976).
10

“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.

Immunities
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).

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.”

Will v. Mich. Dep’t of State

Police, 491 U.S. 58, 70-71 (1989); Ex parte Young, 209
U.S. 123 (1908).
Official capacity defendants are subject to suit
under § 1983 only “for prospective declaratory and
injunctive relief . . . to enjoin an alleged ongoing
11

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)).

In addition, neither a

state, state agency, nor state official acting in his
or her official capacity is considered a “person”
amenable to suit under § 1983.

Will, 491 U.S. at 71.

Hawaii has not unequivocally waived its sovereign
immunity, and Congress has not overridden that immunity
for civil rights actions brought pursuant to § 1983.
See Will, 491 U.S. at 66–67; Krainski v. Nev. ex rel.
Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d
963, 967 (9th Cir. 2010) (stating that Eleventh
Amendment immunity extends to state instrumentalities
and agencies, as well as to state officials in their
official capacities); Baranyi v. Univ. of Hawaii, 2015
WL 3753091, at *3 (D. Haw. June 16, 2015).
Moreover, Thompson’s request for declaratory relief
is subsumed by his claims for damages.

See Rhodes v.

Robinson, 408 F.3d 559, 566 n.8 (9th Cir. 2005) (“And
12

because his claim for damages necessarily entails a
determination whether the officers’ alleged conduct
violated his rights, his separate request for
declaratory relief is subsumed by his damages
action.”).

Further, this court lacks jurisdiction to

transfer Thompson, a Hawaii state prisoner, to a
federal prison, which is the injunctive relief that he
seeks.
Finally, as discussed below, Thompson makes no
plausible claim that he is subject to an ongoing
constitutional violation.

Thompson’s claims against

all Defendants named in their official capacities are
DISMISSED with prejudice.
B.

Eighth Amendment Legal Standard
Thompson asserts that his claims arise under the

Eighth Amendment.

The Eighth Amendment protects

prisoners from inhumane conditions of confinement.
Farmer v. Brennan, 511 U.S. 825 (1994); Morgan v.
Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006).
Extreme deprivations are required to state a conditions
of confinement claim, and “only those deprivations
13

denying the minimal civilized measure of life’s
necessities are sufficiently grave” to violate the
Eighth Amendment.

Hudson v. McMillian, 503 U.S. 1, 9

(1992) (citations and quotations omitted).

“Prison

officials have a duty to ensure that prisoners are
provided adequate shelter, food, clothing, sanitation,
medical care, and personal safety.”

Johnson v. Lewis,

217 F.3d 726, 731 (9th Cir. 2000) (citations omitted).
To establish a violation of the Eighth Amendment, the
prisoner must “show that the officials acted with
deliberate indifference.”

Labatad v. Corr. Corp. of

America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing
Gibson v. Cty. of Washoe, 290 F.3d 1175, 1187 (9th Cir.
2002)).
The deliberate indifference standard involves both
an objective and a subjective prong.

First, the

alleged deprivation must be objectively “sufficiently
serious.”

Farmer, 511 U.S. at 834.

Second,

subjectively, the prison official must “know of and
disregard an excessive risk to inmate health or
safety.”

Id. at 837; Anderson v. Cty. of Kern, 45 F.3d
14

1310, 1313 (9th Cir. 1995).
C.

Count I
In Count I, Thompson alleges that Capt. Paleka and

the Maintenance Supervisor acted with deliberate
indifference to his health when they did not respond to
his written requests to clean the shower.

To be clear,

Thompson does not allege that any Defendant denied him
medical care for the rash; he complains only that
Paleka and the Maintenance Supervisor did not
personally respond to his complaints about the dirty
shower.
Long-term unsanitary conditions can violate the
Eighth Amendment.

See, e.g., Hearns v. Terhune, 413

F.3d 1036, 1041–42 (9th Cir. 2005) (holding allegations
of broken toilets, rusted sinks, stagnant, insectinfested pools of water, and no cold water in 100degree temperatures in the prison yard for nine months
were evidence of serious health hazards and stated a
claim under the Eighth Amendment); Johnson, 217 F.3d at
731-32; Anderson, 45 F.3d at 1314 (stating that a “lack
of sanitation that is severe or prolonged can
15

constitute an infliction of pain within the meaning of
the Eighth Amendment”).
1.

No Objective, Sufficiently Serious Deprivation

Thompson provides little information in support of
this claim.

First, he alleges no facts showing that

the dirty shower was so filthy and unsanitary that it
constituted an extreme deprivation amounting to cruel
and unusual punishment.

Thompson does not allege that

the toilets were broken and overflowing into the
shower, that there was dirty standing water in the
showers, that an excessive number of prisoners were
required to use the shower, or any other clearly
hazardous condition.

He simply says they were dirty

and not cleaned properly.
Second, Thompson provides few details regarding his
rash.

Prison officials violate the Eighth Amendment if

they are deliberately indifferent to a prisoner’s
“serious medical needs.”

Estelle, 429 U.S. at 104.

medical need is serious if failure to treat it will
result in “‘significant injury or the unnecessary and
wanton infliction of pain.’”
16

Peralta v. Dillard, 744

A

F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner, 439
F.3d 1091, 1096 (9th Cir. 2006).

Serious medical needs

“include the existence of an injury that a reasonable
doctor or patient would find important and worthy of
comment or treatment; the presence of a medical
condition that significantly affects an individual’s
daily activities; or the existence of chronic and
substantial pain.”

Colwell v. Bannister, 763 F.3d

1060, 1066 (9th Cir. 2014) (citation and internal
quotation marks omitted); accord Wilhelm, 680 F.3d at
1122; Lopez, 203 F.3d at 1131).
Thompson does not detail where his rash is located
or how widespread or severe it is.

He does not allege

that the rash caused him undue pain or loss of sleep,
significantly interfered with his daily activities, or
became worse through continued exposure to the
allegedly dirty shower.
effect from the rash.

He asserts no long-lasting
Importantly, Thompson does not

allege that he was denied treatment for his rash.
Several courts have held that a rash “is a de
[minimis] injury that does not rise to the level of a
17

constitutional violation” and that there must be “some
evidence linking the conditions of confinement and the
rash” to state a claim.

Brown v. Pierce, 2008 WL

619288, at *5 (C.D. Ill. Mar. 4, 2008) (citing Mase v.
Henry Cty. Jail, 2006 W 3091046, at *1 (W.D. Va. Oct.
27, 2006) (stating that, even if the plaintiff
“suffered from a rash, such minor skin conditions do
not rise to the level of a “serious or significant
physical injury”); Dolberry v. Levine, 567 F. Supp. 2d
413, 417 (W.D.N.Y. 2008) (characterizing a claim
concerning an inmate’s rash, allegedly due to the lack
of showers, as a “de minimis injury that does not give
rise” to an Eighth Amendment violation).
This court is certainly not saying that a rash can
never present a serious medical need.

But Thompson

fails to allege facts showing that, objectively, the
dirty showers or his rash were “sufficiently serious.”
Farmer, 511 U.S. at 834.

Nor does he allege facts

showing that his rash is connected to the dirty shower,
beyond his own conclusory allegation.
state an Eighth Amendment claim.
18

He thus fails to

2.

No Subjective Deliberate Indifference

Even if Thompson could be said to have alleged
sufficient facts going to whether the HSU shower was so
excessively filthy that it constituted a severe,
extreme deprivation, to whether his rash is or was a
serious medical need, and to whether the dirty shower
caused his rash, he fails to show that Paleka and the
Maintenance Supervisor were aware of these allegedly
serious risks to his health and nonetheless disregarded
them.

See Azukas v. Lajoie, 2017 WL 4285688, at *2 (D.

Conn. Sept. 27, 2017).
First, Thompson does not explain what he told
Paleka and the Maintenance Supervisor in his written
requests regarding the allegedly filthy shower.

If

Thompson provided the same level of detail in these
requests to have the shower cleaned as he does in the
Complaint, he would not have put Paleka or the
Maintenance Supervisor on notice that the shower posed
a serious health risk.
Second, Thompson’s Complaint shows that prison
officials responded to his and the other inmates’
19

complaints about the dirty shower, regardless of
whether Paleka and the Maintenance Supervisor
personally answered his requests.

For instance, when

Thompson complained about the dirty shower on August
10, 2017, he says “ACO McGuire,” was “very helpful,”
although he qualifies this by stating that McGuire’s
help “was mostly ignored as it was taking too long.”
ECF No. 1, PageID #7.

Inmate Woods, whose declaration

is attached to the Complaint, states that the shower
was “properly scrubbed” at least twice after he was
housed at the HSU on August 23, 2017.
ECF No. 1-3.

See Woods Dec.,

Inmate Bringas attests to the same.

Bringas Dec., ECF No. 1-2.

See

Thus, the showers were

“scrubbed” at least twice after Thompson wrote Paleka
and the Maintenance Supervisor.

Id.

Inmate Sargent

also states that when Thompson and others complained to
a guard about the dirty shower, they were explicitly
told that someone would clean the shower, and someone
later did so.

See Sargent Dec., ECF No. 1-1.

If Paleka and/or the Maintenance Supervisor
directed their subordinates to clean the shower and
20

were informed that the showers had been cleaned, then,
even if the showers were not actually cleaned properly,
Paleka and the Maintenance Supervisor may have been
unaware of the deficiency.

Moreover, they had no duty

of which the court is aware to personally respond to
Thompson’s requests.
Rule 8 of the Federal Rules of Civil Procedure
requires only that a complaint contain “a short and
plain statement of the claim showing that the pleader
is entitled to relief,” and that each averment in the
complaint “be simple, concise, and direct.”
Civ. P. (8)(a) & (d).

Fed. R.

These basic requirements ensure

that a defendant has sufficient notice of the claims
against him.

See Twombley, 550 U.S. at 555.

Thompson’s claims against Paleka and the Maintenance
Supervisor are too vague and conclusory to state a
claim.
Thompson’s bare allegations do not allow the court
to infer that Paleka, the Maintenance Supervisor, or
any prison official knew of and “disregard[ed] an
excessive risk to” his health regarding the allegedly
21

dirty HSU shower.

Farmer, 511 U.S. at 837.

Thompson

must allege with at least some degree of particularity
overt acts taken by Paleka and the Maintenance
Supervisor that show they knew of an excessive risk to
his health, and, with reckless indifference, failed to
prevent or ameliorate this risk.

Count I, as alleged

against Capt. Paleka and the HCF Maintenance
Supervisor, is DISMISSED with leave granted to amend.
D.

Count II
In Count II, Thompson alleges that Capt. Paleka,

Chief Antonio, Warden Harrington, and Shari Kimoto
acted with deliberate indifference when they generally
failed to respond to his grievances.

Id., PageID #10.

Thompson has a First Amendment right to petition
the government through the prison grievance system.

A

defendant’s actions in responding to a prisoner’s
grievances or appeals, however, do not on their own
give rise to a

claim for relief under § 1983.

A

prison’s “grievance procedure is a procedural right
only, it does not confer any substantive right upon the
inmates.”

Buckley v. Barlow, 997 F.2d 494, 495 (8th
22

Cir. 1993) (citing Azeez v. DeRobertis, 568 F. Supp. 8,
10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334
F.3d 850, 860 (9th Cir. 2003) (holding that there is no
liberty interest in processing appeals because there is
no entitlement to a specific grievance procedure);
Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001)
(stating that existence of grievance procedure confers
no liberty interest on prisoner); Mann v. Adams, 855
F.2d 639, 640 (9th Cir. 1988).

A defendant’s actions

in reviewing a prisoner’s administrative appeal,
without more, are not actionable under § 1983.
Buckley, 997 F.2d at 495.

Regardless of whether these

Defendants denied Thompson’s grievances or ignored
them, Thompson’s allegations do not indicate a
constitutional violation in that regard.
To the extent Thompson is attempting to connect
these officials to the harm that he allegedly suffered
through their failure to remedy a condition that he
allegedly brought to their attention (a matter that is
unclear), he fails to state a claim.

Supervisory

personnel may not be held liable under § 1983 for the
23

actions of subordinate employees based on respondeat
superior or vicarious liability.

Crowley v. Bannister,

734 F.3d 967, 977 (9th Cir. 2013); accord Lemire v.
Cal. Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75
(9th Cir. 2013); Lacey v. Maricopa Cty., 693 F.3d 896,
915-16 (9th Cir. 2012) (en banc).

“A supervisor may be

liable only if (1) he or she is personally involved in
the constitutional deprivation, or (2) there is a
sufficient causal connection between the supervisor’s
wrongful conduct and the constitutional violation.”
Crowley, 734 F.3d at 977 (internal quotation marks
omitted); accord Lemire, 726 F.3d at 1074-75; Lacey,
693 F.3d at 915-16.

“Under the latter theory,

supervisory liability exists even without overt
personal participation in the offensive act if
supervisory officials implement a policy so deficient
that the policy itself is a repudiation of
constitutional rights and is the moving force of a
constitutional violation.”

Crowley, 734 F.3d at 977

(citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir.
1989)) (internal quotation marks omitted).
24

Thompson fails to allege any facts to support a
constitutional violation concerning the allegedly dirty
HSU shower.

Even if he could allege such facts, he

fails to show that these Defendants personally
participated in that violation.

That is, he does not

allege they directed Paleka, the Maintenance
Supervisor, or any prison employee to ignore an extreme
risk to Thompson’s or other inmates’ health posed by
the dirty shower.

Nor does he point to any policy that

they implemented that resulted in such a condition.
Count II, as alleged against Paleka, Antonio,
Harrington, and Kimoto, is DISMISSED with leave to
amend.
E.

Count III
In Count III, Thompson claims that the HCF Medical

Supervisor acted with deliberate indifference to his
serious medical needs when he or she “improperly
handled” Thompson’s request to see an outside nerve
specialist for his “severe chronic lower back pains.”
Id., PageID #13.
To prevail on an Eighth Amendment claim predicated
25

on the denial of medical care, a plaintiff must show
that: (1) he had a serious medical need; and (2) the
defendant’s response to the need was deliberately
indifferent.

Jett, 439 F.3d at 1096; see also Estelle

v. Gamble, 429 U.S. 97, 106 (1976).

For a prison

official’s response to a serious medical need to be
deliberately indifferent, the official must “‘know[ ]
of and disregard[ ] an excessive risk to inmate
health.’”

Peralta, 744 F.3d at 1082 (quoting Farmer,

511 U.S. at 837).
A “mere ‘difference of medical opinion . . . [is]
insufficient, as a matter of law, to establish
deliberate indifference.’”

Toguchi v. Chung, 391 F.3d

1051, 1058 (9th Cir. 2004) (alterations in original)
(citation omitted).

This rule applies whether the

difference is between medical professionals and a
prisoner or between medical professionals only.

Hamby

v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016)
(citation omitted).

A prisoner asserting a deliberate

indifference claim based on a difference of medical
opinions must allege facts showing that “the course of
26

treatment the doctors chose was medically unacceptable
under the circumstances,” and that they “chose this
course in conscious disregard of an excessive risk to
[the prisoner’s] health.”

Jackson v. McIntosh, 90 F.3d

330, 332 (9th Cir. 1996) (citations omitted).
“Deliberate indifference is a high legal standard.”
Toguchi, 391 F.3d at 1060.

The “‘inadvertent [or

negligent] failure to provide adequate medical care’
alone does not state a claim under § 1983.”

Jett, 439

F.3d at 1096 (citing Estelle, 429 U.S. at 105); see
also Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.
1990) (“While poor medical treatment will at a certain
point rise to the level of constitutional violation,
mere malpractice, or even gross negligence, does not
suffice.”).
Thompson does not allege sufficient facts for the
court to reasonably infer that the Medical Supervisor,
or any prison medical provider, was deliberately
indifferent to his serious medical needs.

First,

Thompson does not explain what happened after the
September 2, 2017, incident when he injured his back.
27

He does not allege that he was denied treatment; he
alleges that his request to see an outside nerve
specialist was denied, although he was scheduled to see
another medical provider.
Similarly, Thompson does not allege that he was
denied treatment for his rash, he alleges that he
received no response to medical requests that he
submitted the day he developed the rash and three days
later.

Again, to be clear, Thompson does not allege

that the HCF Medical Supervisor denied or delayed
treatment for the rash.

He restricts his claim against

the Medical Supervisor to an alleged failure to
“properly” respond to his request to see an outside
nerve specialist.
Finally, Thompson fails to show that the HCF
Medical Supervisor personally participated in or
directed any violation or that he or she promulgated a
policy that resulted in a constitutional violation.
Count III, as alleged against the HCF Medical
Supervisor, is DISMISSED with leave to amend.

28

V.

LEAVE TO AMEND

The Complaint is DISMISSED with leave granted to
amend IF Thompson is able to adequately allege that, at
the time he filed this action, he was in imminent
danger of serious physical injury.

In that event, the

court will reconsider the decision to deny the IFP
application.

In the alternative, Thompson may submit

the full civil filing fee, $400.00.
Thompson may file an amended complaint on or before
December 13, 2017, that cures the deficiencies noted in
his claims.

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.

See Local Rule LR10.3.

Defendants not named

and claims dismissed without prejudice that are not
realleged in an amended complaint may be deemed
voluntarily dismissed.

Id. at 928 (stating claims

dismissed with prejudice need not be repled to preserve

29

them for appeal, but claims that are dismissed with
leave to amend are “waived if not repled”).
VI.

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 may count as a “strike”
under the “3-strikes” provision of 28 U.S.C. § 1915(g).
VII.

CONCLUSION

(1) Because Thompson has accrued three strikes
pursuant to 28 U.S.C. § 1915(g), and because he fails
to allege sufficient facts to support an imminent
danger of serious physical injury, his in forma
pauperis application is DENIED.
If Thompson elects to proceed with this action, he
must EITHER pay the $400 filing fee OR submit an
amended pleading on or before December 13, 2017, that
supports a finding that he was in imminent danger of
serious physical injury when he commenced this action.
In that event, the court will reconsider its decision
to deny Thompson’s in forma pauperis application.

30

(2) Thompson’s Complaint is DISMISSED for failure
to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)
and 1915A(a).

Thompson may file an amended pleading on

or before December 13, 2017, if he has paid the civil
filing fee or has sufficiently alleged that he was in
imminent danger of serious physical injury on the date
that he commenced this action.

The amended pleading

must cure the deficiencies noted in Thompson’s claims.
(3) Failure to pay the civil filing fee OR file an
amended pleading that plausibly alleges imminent danger
of serious physical injury AND cures the original
Complaint’s noted deficiencies on or before December
13, 2017, shall result in DISMISSAL of this action and
may constitute a strike under 28 U.S.C. § 1915(g).
(4)

The Clerk is directed to mail Thompson a

prisoner civil rights complaint form so that he can
//
//
//
//
//
31

comply with the directions in this Order.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 13, 2017.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Thompson v. Paleka, No. 1:17-cv-00531 SOM-KJM; scrng 2017 Thompson 17-531 (no imm dgr
ftsc skin rash)

32