Grandinetti v. GTE-Hawaiian Tel et al
DISMISSAL ORDER re 1 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 3/5/13. " The Complaint and action are DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(g). He may reassert these claims in a new action by conc urrently submitting the entire $350.00 filing fee. Any pending motions are DISMISSED. The Clerk shall close the case." (emt, )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). Francis Grandinetti, II served by first class mail at the address of record on March 6, 2013.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FRANCIS GRANDINETTI, II
GTE-HAWAIIAN TEL., et al.,
NO. 1:13-cv-00102 SOM/KSC
ORDER DISMISSING COMPLAINT AND ACTION
Before the court is pro se plaintiff Francis
Grandinetti, II’s prisoner civil rights action.
Grandinetti is a
Hawaii inmate confined at the Saguaro Correctional Center
(“SCC”), in Eloy, Arizona.
Grandinetti asserts false arrest and
retaliation claims relating to his 1988 arrest in Hawaii state
court, No. 88-cr-2074.
Grandinetti has not submitted an in forma
pauperis application or paid the $350 statutory filing fee for
commencing this action.
28 U.S.C. § 1915(g)
A prisoner may not bring a civil action or appeal a
civil judgment in forma pauperis 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).
“[Section] 1915(g) should be used to deny a prisoner’s
IFP status only when, after careful evaluation of the order
dismissing an action, and other relevant information, the
district court determines that the action was dismissed because
it was frivolous, malicious or failed to state a claim.”
v. King, 398 F.3d 1113, 1121 (9th Cir. 2005).
instances, 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.”
At least three of Grandinetti’s prior lawsuits qualify
as “strikes” under § 1915(g):
Grandinetti v. U.S. Marshals Serv., 1:00-cv00489 SOM-KSC (D. Haw., § 1983 case dismissed
for failure to state a claim, Aug. 1, 2001);
Grandinetti v. Bobby Ross Group Inc., et al.,
1:96-cv-00117 (E.D. Tex., § 1983 case
dismissed as frivolous and for failure to
state a claim on Mar. 5, 1999); and
Grandinetti v. Iranon, et al., 1:96-cv-00101
(E.D. Tex., § 1983 case dismissed as
frivolous and for failure to state a claim on
Jan. 26, 1998).1
The court has notified Grandinetti of his strikes numerous
times. See e.g., Grandinetti v. Champion Air, 1:12-cv-00528 SOM;
Grandinetti v. Inverness Med. Co., 1:12-cv-00489 HG, Grandinetti
v. U.S. Attorney Gen., 1:12-cv-00430 HG. Grandinetti did not
appeal the three-strikes determinations in these cases.
See PACER Case Locator, http://pacer.psc.uscourts.gov.
Grandinetti may not bring a civil action without complete
prepayment of the $350.00 filing fee unless he is in imminent
danger of serious physical injury.
28 U.S.C. § 1915(g).
To meet the “imminent danger” requirement, the “threat
or prison condition [must be] real and proximate,”
v. Saini, 352 F.3d 328, 330 (7th Cir. 2003) (quoting Lewis v.
Sullivan, 279 F.3d 526, 531 (7th Cir. 2002)), and the allegations
must be “specific or credible.”
Kinnell v. Graves, 265 F.3d
1125, 1128 (10th Cir. 2001).
“[T]he availability of the [imminent danger] exception
turns on the conditions a prisoner faced at the time the
complaint was filed, not some earlier or later time.”
Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007).
applies if the complaint makes a plausible allegation that the
prisoner faced ‘imminent danger of serious physical injury’ at
the time of filing.”
Id. at 1055.
Claims concerning “imminent
danger of serious physical injury” cannot be triggered solely by
complaints of past abuse.
See Ashley v. Dilworth, 147 F.3d 715,
717 (8th Cir. 1998); Luedtke v. Bertrand, 32 F. Supp. 2d 1074,
1077 (E.D. Wis. 1999).
Nothing within the Complaint or its numerous exhibits
suggests to the court that Grandinetti is in imminent danger of
serious physical injury.
Rather, Grandinetti’s claims are
frivolous and fail to state a claim.
He may not proceed without
prepayment of the civil filing fee.
The Complaint and action are DISMISSED without
prejudice pursuant to 28 U.S.C. § 1915(g).
He may reassert these
claims in a new action by concurrently submitting the entire
$350.00 filing fee.
Any pending motions are DISMISSED.
Clerk shall close the case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 5, 2013.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Grandinetti v. GTE-Hawaiian Tel, et al., 1:13-cv-00102 SOM/KSC; Dismissal Order;
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arrest, friv, 1915(g)).wpd