Tia v. Doe Defendants as Aggrieved et al
Filing
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ORDER DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(g) 3 ; 10 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 7/25/11. ("In light of Plaintiff's litigation history, Plaintiff is not allowed to file anything further in this action other than a notice of appeal. The Clerk of Court is DIRECTED to promptly process any notice of appeal, and to docket any other pleadings, motions, documents, exhibits, etc. submitted by Plaintiff in this action as "requests" or "correspondence." The court will take no action on such pleadings.") (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). Peter Tia served by first class mail at the address of record on July 25, 2011.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
PETER R. TIA, #A1013142
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Plaintiff,
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vs.
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DOE DEFENDANTS AS AGGRIEVED,
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et al.,
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Defendants.
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______________________________ )
CIVIL NO. 11-00352 SOM/RLP
ORDER DENYING IN FORMA
PAUPERIS APPLICATION AND
DISMISSING ACTION PURSUANT TO
28 U.S.C. § 1915(g)
ORDER DENYING IN FORMA PAUPERIS APPLICATION AND
DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(g)
Plaintiff, an inmate at the Halawa Correctional
Facility (“HCF”), filed the instant pro se civil rights complaint
pursuant to 42 U.S.C. § 1983.
in forma pauperis (“IFP”).
Plaintiff seeks leave to proceed
IFP Application, ECF No. 3.
On June
2, 2011, the court ordered Plaintiff to show cause why his
Complaint should not be dismissed without prejudice pursuant to
28 U.S.C. § 1915(g).
4.1
See Order to Show Cause (“OSC”), ECF No.
Plaintiff has since filed four motions, a memorandum, and a
declaration, all of which are somewhat responsive to the OSC and
inform this decision.
See Motions to Compel Rule 11, ECF Nos. 5
& 7; Motion to Serve Complaint and Summons, ECF. No. 8; Motion to
Amend and Supplement the Complaint in Accord with Rule 15 of the
1
Plaintiff’s Complaint alleges that his mail to the United
States Court of Appeals for the Ninth Circuit is being tampered
with and that unidentified prison officials and inmate gang
members have raped and kidnapped his ex-girlfriend and other
family members in retaliation for Plaintiff’s pursuing grievances
and lawsuits exposing their illegal racketeering activities.
Rules of Civil Procedure in No. CV11-00352 SOM RLP To Show Cause,
ECF No. 10; Memorandum, ECF No. 11; and Declaration of Response,
ECF No. 12.
Plaintiff also filed a separate civil suit naming
the undersigned and other court officers.
See Tia v. Mollway, et
al., Civ. No. 11-00421 JMS/KSC.2
The court has carefully considered Plaintiff’s
pleadings, motions, and responses to the OSC.
Plaintiff’s IFP
application is DENIED and his Complaint is DISMISSED without
prejudice to his filing another action with concurrent payment of
the filing fee.
I. LEGAL STANDARD
The Prison Litigation Reform Act of 1995 (“PLRA”),
provides that a prisoner may not bring a civil action or appeal a
civil judgment under 28 U.S.C. § 1915 “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 as 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).
2
United States District Judge J. Michael Seabright
dismissed this action on August 20, 2011, for failure to state a
claim and pursuant to 28 U.S.C. § 1915(g). Civ. No. 11-00421,
Order Dismissing Action Pursuant to 28 U.S.C. §§1915(g),
1915A(b), & 1915(e)(2), ECF No. 8.
2
The factors requiring dismissal of a prisoner action
that may be counted as strikes under § 1915(g) parallel the
language of Federal Rule of Civil Procedure 12(b)(6) and
apparently mean the same thing.
1121 (9th Cir. 2005).
Andrews v. King, 398 F.3d 1113,
“Not all unsuccessful cases qualify as a
strike under § 1915(g).
Rather, § 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.”
Id.
“In some 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.”
Id. at 1120.
Andrews therefore allows the court to
sua sponte raise the § 1915(g) problem and the prisoner bears the
ultimate burden of persuasion that § 1915(g) does not bar pauper
status for him.
Id.
II. Plaintiff’s Allegations
Plaintiff’s claims here are similar to claims he has
made in previous actions.
Plaintiff has consistently sought an
investigation of prison officials and unnamed inmate gang
members, here and on the Mainland, alleging that they are engaged
in a criminal conspiracy under the Racketeer Influenced and
3
Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1964.
See e.g.,
Tia v. Fujita, Civ. No. 08-00575; Tia v. Criminal Investigation,
Civ. No. 10-00441; Tia v. Criminal Investigation Demanded, Civ.
No. 10-00383; Tia v. Baker, Civ. No. 11-00098.
Plaintiff alleges
that this conspiracy involves inmates, family members, prison
officials, and others.
The present Complaint expands this
allegation of conspiracy to now include due process violations by
prison mail room personnel, the Ninth Circuit Court of Appeals,
and the United States Attorney’s office in Honolulu, Hawaii.
III.
DISCUSSION
Plaintiff was ordered to show cause why this action
should not be dismissed under § 1915(g).
In response, Plaintiff
argues that he should be allowed to grieve the claims he raises
in this Complaint, investigate them more fully, and supplement
them with alleged constitutional violations that have occurred
since he filed this action.
Plaintiff also states that he was
never advised about the effect his earlier case dismissals would
have on his ability to proceed IFP in the federal court.
See
Mem. in Support, ECF No. 11-1 at 2 (“No Advisement was ever Given
Plaintiff concerning PAST CASES which were dismissed[.]”).
First, Plaintiff does not dispute that he has filed
three or more actions that were dismissed as frivolous,
malicious, or for failure to state a claim, while he was
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incarcerated.3
Rather, Plaintiff alleges that those cases were
dismissed in violation of his due process rights because he does
not have the legal ability and knowledge to properly raise his
claims.
The court has carefully read the rulings dismissing
Plaintiff’s earlier cases and disagrees with Plaintiff.
Plaintiff’s claims were, without exception, vague, conclusory,
delusional, fanciful, and without legal support.
Plaintiff
received all of the process he was due before these cases were
dismissed.
Second, Plaintiff does not allege that he is in
imminent danger of serious physical injury, and his claims and
supporting facts, such as they are, do not support such a
finding.
In his first Motion to Compel Rule 11, ECF No. 5, filed
after the OSC was issued, Plaintiff made a conclusory allegation
that he is in imminent danger of serious physical injury from the
Doe Defendant inmate gang members.
The court denied Plaintiff’s
motion and informed him again that he must provide sufficient
factual support for this claim.
Compel, ECF. No. 6.
See Order Denying Motion to
Plaintiff has since filed three motions, a
3
See e.g., Tia v. Baker, Civ. No. 11-00098 HG (dismissed
March 9, 2011, under § 1915(g), after notice to Plaintiff
of the cases the court considered strikes); Tia v. Criminal
Investigation, Civ. No. 10-00441 DAE (dismissed as frivolous and
for failure to state a claim); Tia v. Criminal Investigation
Demanded, Civ. No. 10-00383 SOM (dismissed as frivolous and for
failure to state a claim); Tia v. Sequeira, Civ. No. 08-00575 HG
(dismissed for failure to state a claim).
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memorandum, a declaration in response, see ECF Nos. 7, 9, 10, 11,
12, and a new action (Civ. No. 11-00421), but still fails to
provide facts suggesting that he was in imminent danger of
serious physical injury when he filed the Complaint.
See Andrews
v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (“[T]he
availability of the exception turns on the conditions a prisoner
faced at the time the complaint was filed, not at some earlier or
later time.”).
Third, Plaintiff now admits that he has neither fully
exhausted his claims as required, nor completely investigated
them.
While exhaustion of prison administrative remedies is an
affirmative defense, the court may dismiss a complaint for
failure to exhaust where the prisoner “conce[des] to
nonexhaustion” and “no exception to exhaustion applies.”
Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003).
See
There is
no apparent reason why exhaustion of Plaintiff’s claims against
prison officials here should be excepted.
Finally, Plaintiff’s assertion that he has not been
advised of the effect of his prior dismissals under § 1915(g) is
false.
This court and the appellate court have advised Plaintiff
numerous times concerning the effect his dismissals may have on
his ability to proceed IFP.
See e.g., Tia v. Lt. Baker et al.,
Civ. No. 11-00098 HG, Order Dismissing Action Pursuant to 28
U.S.C. § 1915(g), ECF No. 6 (dismissing action for failure to pay
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or allege imminent danger), ECF No. 20, Order of USCA No. 1115689 (“Appellant’s motion to proceed in forma pauperis is denied
because appellant has had three or more prior actions or appeals
dismissed as frivolous or for failure to state a claim and
because appellant has not alleged any imminent danger of serious
injury in this appeal. See 28 U.S.C. § 1915(g).”); Tia v.
Criminal Investigation, Civ. No. 10-00441 DAE, Order Dismissing
Complaint, ECF No. 5 (“This dismissal shall be counted as a
“strike” under 28 U.S.C. § 1915(g).”), ECF No. 14, Order of USCA
No. 10-16842 (“Appellant’s motion to proceed in forma pauperis is
denied because appellant has failed to show that the appeal is
not frivolous.”); Tia v. Criminal Investigation Demanded as Set
Forth, Civ. No. 10-00383 SOM, Order Re: Amended Complaint, ECF
No. 22 at 6 (“The amended complaint is DISMISSED as
frivolous. . . .
As Plaintiff was informed in the August 5
Order, this dismissal shall constitute a strike under 28 U.S.C.
§ 1915(g).”); Tia v. Sequeira, Civ. No. 08-00575 HG, Order
Dismissing Complaint, ECF No. 5 at 5 (notifying Plaintiff that
his dismissal for failure to state a claim may count as a strike
under § 1915(g)).
Plaintiff provides no reasons justifying circumvention
of § 1915(g)’s requirements and has failed to carry his burden of
showing that an exception to the 3 Strikes bar is available to
him.
See Andrews, 398 F.3d at 1121.
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//
IV. CONCLUSION
1.
Plaintiff’s Complaint and this action are DISMISSED
pursuant to 28 U.S.C. § 1915(g) without prejudice to Plaintiff’s
commencing of a new action accompanied by the $350.00 filing fee.
2.
Plaintiff’s in forma pauperis application is DENIED.
3.
Plaintiff’s Complaint is also DISMISSED for failure to
exhaust administrative remedies.
4.
See 42 U.S.C. § 1997e(a).
In light of Plaintiff’s litigation history, Plaintiff is
not allowed to file anything further in this action other than a
notice of appeal.
The Clerk of Court is DIRECTED to promptly
process any notice of appeal, and to docket any other pleadings,
motions, documents, exhibits, etc. submitted by Plaintiff in this
action as “requests” or “correspondence.”
The court will take no
action on such pleadings.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 25, 2011.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Tia v. Doe Defendants, et al., Civ. No. 11-00352 SOM/RLP; ORDER DISMISSING
ACTION PURSUANT TO 28 U.S.C. § 1915(g); psas/3 Strikes Ords/dmp/2011/Tia 11352 SOM (dsm after OSC)
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