Grandinetti v. Mandarino et al

Filing 5

ORDER DENYING TEMPORARY RESTRAINING ORDER AND IN FORMA PAUPERIS APPLICATION AND TRANSFERRING ACTION re 2 , 3 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 12/24/13. "This action is TRANSFERRED to the United States Distric t Court for the District of Arizona. Plaintiff's Motion for Temporary Restraining Order is DENIED without prejudice. The Clerk of Court is DIRECTED to close the file and send any pending motions or further documents received from Plaintiff ref erring to this action to the United States District Court for the District of Arizona." (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 served by first class mail at the address of record on December 24, 2013. [Transferred from hid on 12/26/2013.]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

FRANCIS GRANDINETTI,

)
)
Plaintiff,
)
)
vs.
)
)
LPN ANGELA MANDARINO, et al., )
)
)
Defendants.
_____________________________ )

Civ. No. 13-00709 SOM/BMK
ORDER DENYING TEMPORARY
RESTRAINING ORDER AND IN FORMA
PAUPERIS APPLICATION AND
TRANSFERRING ACTION

ORDER DENYING TEMPORARY RESTRAINING ORDER AND IN FORMA PAUPERIS
APPLICATION AND TRANSFERRING ACTION
Before the court is Plaintiff Francis Grandinetti’s
prisoner civil rights complaint, in forma pauperis application,
and “TRO Application.”

See ECF Nos. 1-3.

Plaintiff is confined

in the Saguaro Correctional Center (“SCC”), in Eloy, Arizona.
Plaintiff alleges that Defendant Angela Mandarino, a licensed
practical nurse practicing at SCC, instructed several SCC guards
to bring Plaintiff to the “mattress” room to perform a
tuberculosis (“TB”) test that was “90 days past due.”
ECF No. 1.

Compl.,

Plaintiff alleges that this room was contaminated

with “blood and spit,” littered with dust and bugs, and “filthy.”
Id.

He claims that the unidentified and untrained prison

employees injected him with the tuberculin protein without using
an alcohol pad first.

Plaintiff moves for a restraining order

seeking unspecified relief.

Plaintiff’s in forma pauperis

application is incomplete; it lacks certification from prison
authorities regarding the amount in his account.

See ECF No. 3.

Because venue is improper in Hawaii, and transfer is in
the interests of justice pursuant to 28 U.S.C. § 1406(a), this
action is TRANSFERRED to the United States District Court for the
District of Arizona.

Plaintiff’s Motion for Temporary

Restraining Order and in forma pauperis application are DENIED
without prejudice.
I.

DISCUSSION

Plaintiff broadly alleges that SCC officials performed
an unsanitary medical procedure apparently against his will.1
Plaintiff has not been incarcerated in Hawaii for many years,
however, and his claims clearly concern incidents that allegedly
occurred or are occurring in Arizona within the control of SCC
officials in Arizona.

Plaintiff provides no facts tying his

allegations to any individual or occurrence in Hawaii.
A.

Improper Venue
When jurisdiction is not founded solely on diversity,

such as actions brought under 42 U.S.C. § 1983, venue is proper
in the district in which: (1) any defendant resides, if all of
the defendants reside in the same state; (2) a substantial part

1

Plaintiff’s exhibits show that he has consistently
requested a TB test and other medical examinations for the past
several months, but refuses these exams when appointments are
scheduled. See Pl.’s Att., ECF No. 1-1.
2

of the events or omissions giving rise to the claim occurred, or
a substantial part of property that is the subject of the action
is situated; or (3) any defendant may be found, if there is no
district in which the action may otherwise be brought.

28 U.S.C.

§ 1391(b); see also Ziegler v. Indian River Cnty., 64 F.3d 470
(9th Cir. 1995) (extensive discussion on jurisdiction); Lee v.
Corr. Corp. of America, 525 F. Supp. 2d 1238, 1241 (D. Haw.
2007).

“The district court of a district in which is filed a

case laying venue in the wrong division or district shall
dismiss, or if it be in the interest of justice, transfer such
case to any district or division in which it could have been
brought.”

28 U.S.C. § 1406(a).

The court has notified Plaintiff

regarding the appropriate venue for claims arising out of
incidents that occur in Arizona many times.

See, e.g.,

Grandinetti v. Haleem, Civ. No. 12-00441 JMS (D. Haw.)
(transferred to District of Arizona Aug. 14, 2012).
The events or omissions underlying Plaintiff’s claims
occurred in Arizona and all of the individuals involved in the
incident apparently reside there.
therefore lies in Arizona.

Venue for Plaintiff’s claims

See 28 U.S.C. § 1391(b).

The

interests of justice favor transfer of this case to the district
where the significant events or omissions material to Plaintiff’s
claims occurred, witnesses may be found, there is access to the
necessary evidence, and there is a local interest in resolving

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the matter.

See 28 U.S.C. § 1406(a); see also King v. Russell,

963 F.2d 1301, 1305 (9th Cir. 1992).

This action is TRANSFERRED

to the United States District Court for the District of Arizona.
B.

Plaintiff’s In Forma Pauperis Application
Plaintiff is aware that he may not bring a civil

action without prepayment of the filing fee unless he is in
imminent danger of serious physical injury pursuant to 28 U.S.C.
§ 1915(g).2

Although Plaintiff’s allegations require more detail

to state a claim, liberally construed they plausibly suggest
imminent danger of serious physical injury.

Whether Plaintiff

may proceed in forma pauperis under the circumstances alleged is
a determination better left to the United States District Court
for the District of Arizona, however.

In any event, Plaintiff’s

in forma pauperis application is incomplete.

Plaintiff’s in

forma pauperis application is DENIED without prejudice.
//
//
//

2

Plaintiff refers to § 1915(g) in his Complaint, apparently
to invoke the imminent danger exception. This court and the
Ninth Circuit Court of Appeals have notified Plaintiff of his
many strikes in earlier actions. See, e.g., Grandinetti v. FDC
Seg. Unit Staff, 420 Fed. Appx. 576 (9th Cir. 2011); Grandinetti
v. Shimoda, Civ. No. 05-00442 JMS; Grandinetti v. Stampfle, Civ.
No. 05-00692 HG. Plaintiff has had the opportunity to object to
these three-strikes findings, but has not.
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C.

Motion for Temporary Restraining Order3
A temporary restraining order “is an extraordinary and

drastic remedy never awarded as of right.”

Winter v. Natural

Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation
omitted).

A plaintiff seeking a temporary restraining order

“must establish that he is likely to succeed on the merits, that
he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest.”

Id. at

20; accord Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th
Cir. 2009).

In cases brought by prisoners involving conditions

of confinement, injunctive relief “must be narrowly drawn, extend
no further than necessary to correct the harm the court finds
requires preliminary relief, and be the least intrusive means
necessary to correct the harm.”

18 U.S.C. § 3626(a)(2).

Plaintiff provides insufficient detail to establish the
likelihood of success on his claims, whether he is likely to
suffer irreparable harm in the absence of relief, or that the
equities tip in his favor.

Moreover, these questions are better

left to the transferee court after Plaintiff has an opportunity

3

The court would normally transfer all pending motions to
the transferee court when transferring an action for improper
venue. In an abundance of caution, however, and in light of
Plaintiff’s allegations, the court reviews the Motion for
Temporary Restraining Order before transfer.
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to amend and clarify his claims.

The Motion for Temporary

Restraining Order is DENIED without prejudice.
II.

CONCLUSION

This action is TRANSFERRED to the United States
District Court for the District of Arizona.

Plaintiff’s Motion

for Temporary Restraining Order is DENIED without prejudice.

The

Clerk of Court is DIRECTED to close the file and send any pending
motions or further documents received from Plaintiff referring to
this action to the United States District Court for the District
of Arizona.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 24, 2013.

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

Grandinetti v. Mandarino, Civ. No. 13-00709 SOM/BMK; trsf ven rmd/2013/
grandinetti 13-709 som (trsf ven, dny ifp, & TRO); J:\Denise's Draft
Orders\SOM\Grandinetti 13-709 SOM (trsf ven, dny ifp & TRO).wpd

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