Thompson v. Capt. Paleka, et al

Filing 6

ORDER Denying Renewed In Forma Pauperis Application And Directing Payment. "Plaintiff has accrued three strikes pursuant to 28 U.S.C. § 1915(g), and fails to allege plausible facts to support an imminent danger of serious physical injury, his In Forma Pauperis Application, ECF No. 2, remains DENIED. Plaintiff may proceed with this action if he submits the $400 filing fee to the Clerk of Court within twenty one 21 days of the date of this Order, or on or before January 2 5, 2018. If Plaintiff fails to submit the civil filing fee on or before January 25, 2018, this action will be automatically terminated without further notice without prejudice to refiling with concurrent payment of the filing fee." Signed by JUD GE SUSAN OKI MOLLWAY on 1/4/18. (cib, )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). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

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

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

NO. 1:17 cv 00531 SOM KJM
ORDER DENYING RENEWED IN
FORMA PAUPERIS APPLICATION
AND DIRECTING PAYMENT

ORDER DENYING RENEWED IN FORMA PAUPERIS
APPLICATION AND DIRECTING PAYMENT
Before the court is Plaintiff’s First Amended
Complaint (“FAC”) and renewed Application to Proceed In
Forma Pauperis by a Prisoner (“IFP”).
5; IFP Application, ECF No. 2.

See FAC, ECF No.

Plaintiff, a state

prisoner proceeding pro se, alleges that Halawa
Correctional Facility (“HCF”) and Department of Public
Safety (“DPS”) officials violated his constitutional
rights by failing to properly maintain the showers at
the HCF High Security Unit (“HSU”), failing to properly
respond to his complaints and grievances, and denying
or delaying him medical care for a rash and chronic

back injury.1
For the following reasons, Plaintiff’s IFP
Application remains DENIED.

Plaintiff is ORDERED to

submit the civil filing fee within twenty one [21] days
of the date of this ORDER.

Failure to timely remit the

civil filing fee shall result in automatic termination
of this action without prejudice.
I.

PROCEDURAL HISTORY

Plaintiff commenced this action between October 10
and 18, 2017, when he signed the original Complaint and
prison officials mailed it to the court.

See Douglas

v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009)
(considering the postmark as the date of filing for
applying the prison mailbox rule) (citing Houston v.
Lack, 487 U.S. 266, 271 (1988) (holding prisoner
pleadings may be considered filed when they are placed
in the prison mail system).

The Complaint was filed on

October 20, 2017.

1

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

2

On October 19, 2017, Plaintiff was transferred from
the HSU to the HCF Medium Facility.

See Thompson v.

Borges, No. 1:17 cv 00561 LEK KJM (D. Haw. Nov. 13,
2017), ECF No. 1 2, PageID #50.2
On November 13, 2017, the court denied Plaintiff’s
IFP Application because he had accrued three strikes
pursuant to 28 U.S.C. § 1915(g), and alleged no
plausible facts showing that he was in imminent danger
of serious physical injury when he filed the Complaint.
Order, ECF No. 4.

The court also screened the

Complaint, found that it failed to state a claim on
which relief can be granted, and dismissed it with
leave granted to amend.

Plaintiff was notified that,

if he filed an amended pleading that stated a claim and
alleged plausible facts showing that he was in imminent
danger of serious physical injury when it was filed,
the court would revisit his request to proceed IFP.
On December 12, 2017, the FAC was mailed to the

2

The court “may take notice of proceedings in other courts
. . . if those proceedings have a direct relation to matters at
issue.” United States ex rel. Robinson Rancheria Citizens
Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).

3

court; it was received and filed on December 14, 2017.
FAC, ECF No. 5.
II.

28 U.S.C. § 1915(g)

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

Plaintiff does not contest the court’s

finding that he has filed three civil actions while
imprisoned that were dismissed for failure to state a
claim, and that he has accrued “three strikes.”3
PACER Case Locator

See

http://pacer.psc.uscourts.gov (last

visited Dec. 24, 2017).
There is an exception to § 1915(g)’s three strikes
bar if the plaintiff “makes a plausible allegation that

3

See, e.g., Thompson v. Dep’t of Public Safety, No. 1:17cv-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-cv00235 LEK-KSC (D. Haw. Aug. 1, 2017) (same); Thompson v. Burns,
No. 2:13-cv-01715-PHX-SPL (D. Ariz. July 14, 2014) (same).
Thompson was notified of these strikes and provided copies of
each dismissal order. See Thompson v. Hamilton, No. 1:17-cv00520 JMS-RLP (D. Haw. Oct. 27, 2017).

4

[he] faced ‘imminent danger of serious physical injury’
at the time of filing.”

Andrews v. Cervantes, 493 F.3d

1047, 1055 (9th Cir. 2007); see also Williams v.
Paramo, 775 F.3d 1182, 1189 (9th Cir. 2015) (holding
that a prisoner may also be required to demonstrate
imminent danger at the time the notice of appeal is
filed).

The imminent danger exception “turns on the

conditions a prisoner faced at the time the complaint
was filed, not at some earlier or later time.”
Andrews, 493 F.3d at 1053.
To qualify for § 1915(g)’s exception, the danger
alleged must be real, proximate, and/or ongoing.

Id.;

Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003)
(stating, “the harm must be imminent or occurring at
the time the complaint is filed”); Blackman v. Mjening,
2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016)
(“Imminent danger of serious physical injury must be a
real, present threat, not merely speculative or
hypothetical.”).

A plaintiff must provide “specific

fact allegations of ongoing serious physical injury, or
a pattern of misconduct evidencing the likelihood of
5

imminent serious physical injury.”

Martin v. Shelton,

319 F.3d 1048, 1050 (8th Cir. 2003); see also Logan v.
Tomer, 2017 WL 3896364, at *1 2 (E.D. Cal. Sept. 6,
2017) (finding prisoner failed to show cause that he
was in imminent danger when he filed the complaint).
“[V]ague and utterly conclusory assertions” of
imminent danger are insufficient.

White v. Colorado,

157 F.3d 1226, 1231 32 (10th Cir. 1998); Martin, 319
F.3d at 1050 (stating, “conclusory assertions” are
“insufficient to invoke the exception to § 1915(g)”);
Pauline v. Mishner, 2009 WL 1505672, at *3 (D. Haw. May
28, 2009) (“Plaintiff’s vague and conclusory
allegations of possible future harm to himself or
others are insufficient to trigger the ‘imminent danger
of serious physical injury’ exception to dismissal
under § 1915(g).”).

The “imminent danger” exception is

available “for genuine emergencies,” where “time is
pressing” and “a threat . . . is real and proximate.”
Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002).
Further, a prisoner must show a “nexus between the
imminent danger [the complaint] alleges and the claims
6

it asserts, to qualify for the ‘imminent danger’
exception of § 1915(g)” and demonstrate that he has
standing to pursue his claims pursuant to the “escape
hatch” provided by the statute.

Pettus v. Morgenthau,

554 F.3d 293, 298 99 (2d Cir. 2009).

To determine

whether a nexus exists, a court should consider “(1)
whether the imminent danger of serious physical injury
that a three strikes litigant alleges is fairly
traceable to unlawful conduct asserted in the
complaint, and (2) whether a favorable judicial outcome
would redress that injury.

The three strikes litigant

must meet both requirements in order to proceed [in
forma pauperis].”

Id.; Stine v. Fed. Bureau of

Prisons, 2015 WL 5255377, at *3 (E.D. Cal. Sept. 9,
2015).
III.

NO IMMINENT DANGER OF SERIOUS PHYSICAL INJURY

Plaintiff asserts two incidents to show that he was
in imminent danger of serious physical injury when he
commenced this action.
A.

The HSU Shower: Counts I and II
Plaintiff complained to floor guards about the
7

allegedly unsanitary HSU shower in May 2017, and says
that, although they were helpful, this “help mostly
took way too long.”

FAC, ECF No 5, PageID #72.

On

July 7 and 26, and August 27, 2017, Plaintiff wrote
Captain Paleka and the HCF Maintenance Supervisor to
report that the HSU shower curtain was moldy, the drain
was clogged with soap, scum, bandages, cellophane
wrappings, hair, and “other hazardous unidentifiable”
debris.

Id.

Plaintiff claimed these conditions posed

an “excessive risk” to his health and a “substantial
[likelihood] to catch Rashes and even diseases and/or
infections including staff [sic], gang green [sic],
even Hep C. and AIDS.”

Id.

Plaintiff alleges that

Captain Paleka and the Maintenance Supervisor either
failed to reply to or “inadequately” replied to his
requests.

Id.

On September 4, 2017, HSU inmate Raymond Sargent
contracted a rash that he believed was caused by bug
bites, but now suspects was due to the HSU shower.

See

id. at PageID #84, “Medical Request”; Sargent Dec., ECF
No. 5 1.

Sargent asked for and received medical care
8

and medicine for his rash, a memorandum for new
clothes, cleaning supplies, and assurances that the
shower would be cleaned.

Id.

On Friday, September 8, 2017, Plaintiff developed a
painful, itchy rash on his left shoulder, arm, and
chest that he attributes to the HSU shower.

Plaintiff

requested medical treatment that day, and again on
Monday, September 11, 2017, but says his requests were
unanswered or “inadequately” answered.
#73.

Id., PageID

Plaintiff then “submitted proper Grievances about

filthy shower and the denial of medical treatment.”
Id.

Plaintiff does not explain what the inadequately

answered requests said, or detail what occurred when he
submitted “proper” requests; he filed the original
Complaint more than one month later.
Although Plaintiff now sets forth more details
about his rash and his fears regarding the HSU shower,
he still fails to show that he was in imminent danger
of serious physical injury when he filed this action or
when he filed the FAC.

First, Plaintiff waited more

than a month after he developed the rash before filing
9

this action, and he does not explain this delay.
Accepting that the rash was painful, itchy, blistering,
and irritating, this court notes that Plaintiff
nonetheless alleges no specific facts showing that it
constituted an ongoing, serious, real, proximate, life
threatening injury.
Second, and most important, Plaintiff, although
given the opportunity, still does not allege that he
was denied treatment for the rash after the weekend
that it developed and the date that he filed this
action.4

Nor does he say that his symptoms worsened or

required emergency care.

A delay of three days, over a

weekend, before being scheduled to see a medical
provider for a rash, without any allegation that the
rash presented an emergency that required urgent care,
does not support a finding that Plaintiff was in
imminent danger of a serious physical injury when the
rash developed, when he commenced this action, or when
4

To the contrary, Plaintiff’s exhibit in No. 1:17-cv-00561
LEK-KJM, dated 10/21/2017, suggests that he had been prescribed
hydrocortisone cream for the rash before moving to the HCF Medium
Facility. See id., ECF No. 1-10, PageID #68 (“RASH! please get
me a tube of my Hydrocortizone! [sic]”) (emphasis added).

10

he filed the FAC.
Third, Plaintiff’s hypothetical allegations that
the HSU’s unsanitary shower posed the possibility of
his contracting a staphylococcus infection, gangrene,
HIV, or Hepatitis C constitutes only unsupported
speculation.
Fourth, Plaintiff shows no nexus between the rash
and his claims against Captain Paleka, HCF Maintenance
Supervisor, Chief Antonio, Warden Harrington, and Shari
Kimoto regarding the allegedly unsanitary showers.
Plaintiff does not allege that these Defendants denied,
delayed, or interfered with medical care for the rash.
Rather, he alleges they failed to respond, or
improperly responded, to his requests, complaints and
grievances regarding the shower’s allegedly unsanitary
condition and other issues that he raised regarding
prison conditions.

See Counts I and II, FAC, ECF No.

5, PageID #72 79.
Moreover, Plaintiff concedes that the HSU shower
was cleaned when he complained in May 2017, although
not quickly enough in his opinion, and his witness
11

exhibits show that the shower was “properly scrubbed”
at least twice in August and September 2017.

See

Bringas Dec., ECF No. 5 2, PageID #88 (stating shower
“scrubbed twice” between August 3 and September 28,
2017); Woods Dec., ECF No. 5 3, PageID #90 (stating
shower was “properly scrubbed twice” between August 23
and September 27, 2017).

This indicates that

Defendants did, in fact, respond to Plaintiff’s
complaints about the shower by directing their
subordinates to clean it, even if not often enough.
Finally, when Plaintiff filed the FAC, which is the
operative pleading, he had been transferred to the HCF
Medium Facility nearly two months earlier and was no
longer using the HSU shower.

Plaintiff fails to

plausibly allege that he was in imminent danger of
serious physical injury when he filed the original
Complaint or the FAC.5

5

Some courts, relying on the statement in Andrews that
conditions at the time the complaint is filed determine when the
three-strikes exception applies, see 493 F.3d at 1052, evaluate
imminent danger claims as of the date an amended pleading is
filed. See Manago v. Beard, 2017 WL 363022, at *2 (E.D. Cal.
Jan. 1, 2017); Diaz v. Sherman, 2016 WL 8673044, at *2 (E.D. Cal.
(continued...)

12

B.

Chronic Back Pain: Count III
Plaintiff next discusses an incident that allegedly

occurred three years ago, on September 2, 2014, at the
Oahu Community Correctional Center” (“OCCC”), during
which he alleges his back was injured.6

Plaintiff

continues to experience back pain, although he states
that he has received regular medical care, x rays, and
medication since the incident.
On September 23, 2017, Plaintiff requested an
appointment with an “outside ‘Nerve’ specialist,” but
was told that he must see a prison medical “provider”
first, and he was scheduled for an appointment.

ECF

5

(...continued)
Aug. 5, 2016) (finding neither original nor amended complaint
sufficient to apply the exception); Chatman v. Frazier, 2015 WL
7455537, at *6 (E.D. Cal. Nov. 24, 2015); Rider v. Parente, 2011
WL 2745986, at *4 (E.D. Cal. July 14, 2011). Other courts look
to the date of commencement of the lawsuit, not the date an
amended pleading is filed. See Wingate v. City of N.Y., 2017 WL
3498698, at *5 (N.D.N.Y. Aug. 15, 2017) (counting imminent danger
as of date of filing the action, not the amended pleading); Dixon
v. Brown, 2017 WL 3084151, at *2 (E.D. Tex. July 19, 2017)
(same). Because Plaintiff fails to allege facts suggesting
imminent danger in either pleading, the court need not decide
this issue here.
6

Plaintiff says that he was “maliciously and sadistically
manhandled [and] assaulted . . . sustain[ing] multiple
substantial injuries including lower back pains.” ECF No. 5,
PageID #74.

13

No. 5, PageID #74.

Plaintiff complains that he had not

seen a nerve specialist by October 10, 2017, and that
he “shouldn’t have to see the ‘Provider’ for every
single request about the same issue, that’s ridiculous,
that’s a waste of time and/or money, that should be
construed as a Constitutional violation.”

Id.

Plaintiff claims this “excessive and unreasonable
delay[]” constitutes imminent danger of serious
physical injury.

Id.

The court disagrees.

Plaintiff is being regularly

treated for his back pain, has been scheduled to see a
medical provider to evaluate his request for outside
care, and is not in imminent danger of serious physical
injury due to his back pain.

Being required to see a

general practitioner before being referred to a
specialist is a common occurrence outside of prison in
most health maintenance organizations.

It is obviously

necessary in the prison setting.
Moreover, Plaintiff has an ongoing federal lawsuit,
Thompson v. Afamasaga, No. 1:16 cv 00128 JMS KSC (D.
Haw. 2016), in which he is litigating the September
14

2014 incident during which he allegedly incurred his
back injury.

Plaintiff is represented by an attorney

in that action, who can raise any issues relating to
those injuries therein.

Plaintiff may not rely on this

allegation as support for the present action in hopes
of plausibly alleging imminent danger of serious
physical injury sufficient to proceed IFP.
Nothing within the FAC supports an inference that
Plaintiff is (or was) in imminent danger of serious
physical injury due to the condition of the HSU shower,
his rash, or his chronic back pain when he filed this
action or the FAC.

Nor do the facts alleged show a

continuing practice that injured Plaintiff in the past
that poses an “ongoing danger.”
1057.

Andrews,

493 F.3d at

Plaintiff may not proceed IFP and his IFP

Application remains DENIED.
III.

CONCLUSION

Because Plaintiff has accrued three strikes
pursuant to 28 U.S.C. § 1915(g), and fails to allege
plausible facts to support an imminent danger of
serious physical injury, his In Forma Pauperis
15

Application, ECF No. 2, remains DENIED.
Plaintiff may proceed with this action if he
submits the $400 filing fee to the Clerk of Court
within twenty one [21] days of the date of this Order,
or on or before January 25, 2018.

If Plaintiff fails

to submit the civil filing fee on or before January 25,
2018, this action will be automatically terminated
without further notice without prejudice to refiling
with concurrent payment of the filing fee.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii; January 4, 2018.

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

Thompson v. Paleka, No. 1:17-cv-00531 SOM-KJM; 3 stks ‘17 Thompson 17-531 (FAC skin
rash no imm dgr)

16