Thibodeaux v. White

• Court: District Court, W.D. Washington
• Decided: February 28, 2020
• Docket: 3:20-cv-05110
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 LOUIS JAMES THIBODEAUX, CASE NO. 3:20-cv-05110-BHS-JRC 11 Plaintiff, ORDER TO SHOW CAUSE OR 12 v. PAY FILING FEE 13 DANIEL WHITE, et al., 14 Defendant. 15 16 The District Court has referred this 42 U.S.C. §1983 civil rights action to the undersigned 17 Magistrate Judge, as authorized by 28 U.S.C. §§ 636(b)(1)(A) and (B) and Local Magistrate 18 Judge Rules MJR 1, MJR 3, and MJR 4. 19 Plaintiff seeks leave to proceed in forma pauperis in this matter. See Dkt. 4. He asserts 20 claims for violation of the Eighth Amendment against three prison staff and officials on the basis 21 of an incident in which a nurse allegedly failed to send plaintiff to a hospital when he suffered 22 severe chest pain and breathing problems and an incident a few days later, when a corrections 23 /// 24 1 officer allegedly physically injured him. See Dkt. 1-1, at 5, 7. Plaintiff alleges that he suffers 2 “succumbed prolonged spells of depression,” “prevailing and deep-seated anxiety over his future 3 and current conditions, and inability to defend himself within the hostile prison environment[.]” 4 Dkt. 1-1, at 6.

5 Under a portion of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g), a prisoner who 6 brings three or more civil actions or appeals that are dismissed as frivolous or for failure to state 7 a claim will be precluded from bringing any other civil action or appeal in forma pauperis 8 “unless the prisoner is under imminent danger of serious physical injury.” 9 A review of court records shows that at least three of the cases that plaintiff filed while 10 incarcerated were dismissed as frivolous or for failure to state a claim. The Court takes judicial 11 notice of a prior matter that plaintiff brought in this District, Thibodeaux v. White et al., in which 12 the District Court found that plaintiff had three prior strikes. See Dkts. 16, 18, No. 3:19-cv- 13 05134-RBL (Thibodeaux I). The Report and Recommendation in that matter found— 14 [w]hile incarcerated Plaintiff brought at least three actions which were frivolous, malicious, or failed to state a claim. See Dkt. 14 (finding the following three strikes: 15 Thibodeaux v. Villanueva (Case No. 3:01-CV-1062-HU, D. Or., April 12, 2002), Thibodeaux v. Hill (Case No. 3:03-CV-1121-HA, D. Or., Feb. 13, 2004), 16 Thibodeaux v. Phillip Morris Incorporated (Case No. 6:06-CV-6185-HO, D. Or., Aug. 28, 2006)). Therefore, Plaintiff has incurred three strikes and is barred from 17 proceeding IFP in this action unless he can show he is exempt from the three strikes rule because he is under imminent danger of serious physical injury. See 18 Thibodeaux v. Belleque, Case No. 3:07-cv-6070-MO (finding Plaintiff has incurred three strikes). 19 Dkt. 16, at 7–8, Thibodeaux I; see also Dkt. 18, Thibodeaux I (adopting the Report and 20 Recommendation). 21 Regarding the imminent danger exception, plaintiff acknowledges his prior strikes but 22 /// 23 24 1 alleges that the events at issue caused “plaintiff sustained injury of a mild heart attack” so that he 2 meets the exception. See Dkt. 1-1, at 7. Plaintiff filed his proposed complaint in February 2020 3 and alleges that the events occurred in December 2018. See Dkt. 1-1, at 9. 4 To show a danger that is “imminent,” a prisoner must plausibly allege that the danger is

5 “ongoing.” See Andrews v. Cervantes, 493 F.3d 1047, 1056 (9th Cir. 2007). A danger can be 6 “ongoing” if the prisoner is not directly exposed to the danger at the precise moment of filing; “a 7 prisoner who alleges that prison officials continue with a practice that has injured him or others 8 similarly situated in the past will satisfy the ‘ongoing danger’ standard.” Id. at 1056–57. 9 Here, plaintiff has not plausibly alleged imminent danger. Although the events at issue 10 occurred while plaintiff was housed in Shelton, Washington, apparently at the Washington 11 Corrections Center, plaintiff is now incarcerated in Aberdeen, Washington, at the Stafford Creek 12 Corrections Center. See Dkt. 1-1, at 20. Plaintiff alleges that at Washington Corrections Center, 13 a nurse intentionally withheld treatment when plaintiff suffered heart failure and that a 14 corrections officer intentionally harmed him. See Dkt. 1-1. As plaintiff has been transferred to

15 another institution and alleges intentional harm by particular staff at the prior institution, he has 16 not plausibly alleged ongoing harm. Moreover, although plaintiff alleges ongoing psychological 17 symptoms (Dkt. 1, at 6), this does not show imminent danger of serious “physical” injury. See 18 28 U.S.C. § 1915(g). 19 Plaintiff shall show cause on or before March 27, 2020 why his application to proceed in 20 forma pauperis should not be denied. In the alternative, plaintiff may pay the $400.00 filing fee 21 for this matter by March 27, 2020. Plaintiff is advised that if he elects to pay the $400.00 filing 22 /// 23 ///

24 1 fee and proceed with this action, the Court will address the deficiencies of his complaint in a 2 separate order. 3 Dated this 28th day of February, 2020. 4

5 A 6 J. Richard Creatura 7 United States Magistrate Judge

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