Tierney vs. Alo; et al.

Filing 16

ORDER Denying IFP Application And Dismissing Action. Signed by JUDGE SUSAN OKI MOLLWAY on 4/20/12. "The Clerk SHALL close the file." (gls, )CERTIFICATE OF SERVICEParticipants registered to receive electro nic 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
MICHAEL C. TIERNEY, #A0201434, ) CIVIL NO. 12-00059 SOM/KSC
)
Plaintiff,
)
) ORDER DENYING IFP APPLICATION
vs.
) AND DISMISSING ACTION
)
ACO S. ALO, CARL DENNISON,
)
BRANDON LAFAGA,
)
)
Defendants.
)
______________________________ )
ORDER DENYING IFP APPLICATION AND DISMISSING ACTION
Before the court is pro se Plaintiff Michael C.
Tierney’s prisoner civil rights complaint and in forma pauperis
(“IFP”) application.

Plaintiff alleges that Defendants Adult

Correctional Officer (“ACO”) S. Alo, inmate Carl Dennison, and
inmate Brandon Lafaga violated his constitutional rights on or
about May 15, 2009, at the Oahu Community Correctional Facility
(“OCCC”), when Dennison and Lafaga allegedly assaulted Plaintiff
at Alo’s direction.

Plaintiff, who has recently been transferred

back to OCCC, alleges that he fears for his life that unnamed
OCCC staff “will use inmates or staff to attack me again.”

ECF

#1, Compl. at 5.
For the following reasons, Plaintiff’s IFP application
is DENIED and this action is DISMISSED without prejudice to
Plaintiff’s filing a new action accompanied by the statutory
filing fee.
//

I.

BACKGROUND

Plaintiff filed this action on February 13, 2012.
#1.

ECF

On February 24, 2012, the court ordered Plaintiff to show

cause why he should be allowed to proceed IFP in this action in
light of his numerous prior dismissals and apparent 3-strike bar
under 28 U.S.C. § 1915(g).

ECF #5 (Order to Show Cause (“OSC”)).

The court also denied Plaintiff’s IFP application as incomplete,
and instructed Plaintiff to provide a complete IFP form when he
responded to the OSC.
On March 9, 2012, Plaintiff responded to the OSC, but
failed to adequately address the court’s concern that his
complaint failed to show that he was in imminent danger of
serious physical injury when he filed the complaint.
(“March 9 Response”).

See ECF #6

The court again ordered Plaintiff to

respond to the OSC, and to submit a fully completed IFP
application.

ECF #7.

On March 19, 2012, Plaintiff filed a notice of appeal
of the OSC and denial of IFP, a second Response to the OSC
(“March 19 Response”), and a complete IFP application.
#8, 9, #10.

See ECF

The court stayed the proceedings pending resolution

of Plaintiff’s appeal.

ECF #12.

On April 12, 2012, the Ninth

Circuit Court of Appeals dismissed Plaintiff’s appeal for lack of
jurisdiction.

ECF #15.

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II.
A.

DISCUSSION

28 U.S.C. § 1915(g)
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 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); Tierney v. Kupers, 128

F.3d 1310, 1311 (9th Cir. 1997).
For dismissals that may be counted under § 1915(g), the
phrase “fails to state a claim on which relief may be granted”
parallels the language of Federal Rule of Civil Procedure
12(b)(6) and apparently means the same thing.

Andrews v. King,

398 F.3d 1113, 1121 (9th Cir. 2005).

“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
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least one of the criteria under § 1915(g) and therefore counts as
a strike.”

Id. at 1120.

Andrews therefore allows the court to

raise sua sponte the § 1915(g) problem, and the prisoner bears
the ultimate burden of persuading the court that § 1915(g) does
not bar pauper status for him.
B.

Id.

Plaintiff’s Prior Dismissals
A review of the federal courts’ public dockets and

electronic records, http://pacer.psc.uscourts.gov, (“PACER”),
reveals that Plaintiff has filed numerous civil actions in this
and other federal courts that have been dismissed as frivolous or
failing to state a claim.

See e.g., Tierney v. Kupers, 128 F.3d

1310, 1312 (9th Cir. 1997) (finding that Plaintiff had three
strikes under 28 U.S.C. § 1915(g)); Tierney v. Clinton, 1996 WL
310171 (D.C. Cir. May 28, 1996), aff’g Tierney v. Clinton, Civ.
No. 1:95-01268 UNA (dismissing action as frivolous); Tierney v.
United States, Civ. No. 11-00082 HG Doc. No. 6 (D. Haw. 2011)
(dismissing as frivolous and finding Plaintiff had accrued three
strikes); Tierney v. United States, Civ. No. 10-00675 HG Doc. No.
9 (D. Haw. 2010) (dismissing as frivolous and finding Plaintiff
had accrued three strikes); Tierney v. United States, Civ. No.
10-00166 HG Doc. No. 6 (D. Haw. 2010) (dismissing as frivolous
and finding the dismissal counted as a strike); Tierney v. United
States, Civ. No. 08-00543 HG Doc. No. 4 (D. Haw. 2010)
(dismissing as frivolous); Tierney v. United States, Civ. No. 084

00326 JMS Doc. No. 4 (D. Haw. 2008) (finding complaint failed to
state a claim); Tierney v. Quiggle, Civ. No. 96-5995 (W.D. Wash.
1997).
As noted, several of these actions explicitly informed
Plaintiff that they constituted strikes or that he had already
accrued three strikes.

See Andrews, 398 F.3d at 1120 (requiring

defendants or the court to notify a plaintiff of dismissals
supporting a § 1915(g) dismissal before granting defendants’
motion to revoke IFP and dismiss case).
Plaintiff of these strikes in the OSC.

The court also notified
See ECF #5.

Because

Plaintiff has three strikes, he may not bring a civil action
without prepayment of the $350.00 filing fee unless he is in
imminent danger of serious physical injury.
C.

28 U.S.C. § 1915(g).

Plaintiff’s Responses to the Order to Show Cause
Plaintiff alleges that, three years ago, in May 2009,

while he was incarcerated at OCCC, ACO Alo instructed inmates
Dennison and Lafaga to attack Plaintiff.

Plaintiff says that,

since his recent transfer back to OCCC, he has lived in fear that
unnamed “staff at O.C.C.C. will use inmates or staff to attack me
again.”

Compl. at 5, 6, 7.
In the March 9 Response to the OSC, Plaintiff

reiterates his claims regarding the alleged assault in 2009.
#6.

ECF

Plaintiff ignores the court’s explicit instructions in the

OSC, and provides no statement from which it can be inferred that

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he is in imminent danger of serious physical injury from
Defendants or others at OCCC.
In his March 19 Response, Plaintiff sets forth Black’s
Law Dictionary definition of “assault,” stating that “assault
includes acts that merely put a person in reasonable fear of
physical attack.”

ECF #9 at 1.1

This suggests that Plaintiff

argues he has a “reasonable” fear of physical attack.

Plaintiff,

however, provides no further details, reiterating simply that, on
May 15, 2009, he was allegedly attacked, presumably referring to
Defendants and to his previous incarceration at OCCC, although
this is not explicit.

See id. at 2.

Neither the complaint nor Plaintiff’s two Responses say
that Alo, Dennison, and Lafaga remain at OCCC, continue to
threaten Plaintiff, or otherwise pose a continuing and credible
threat to his safety.

As noted in the OSC, OCCC houses pre-trial

inmates, inmates with relatively short sentences, or inmates that
are near the termination of their sentences.

See generally,

http://hawaii.gov/psd/corrections/institutions-division.

It is

quite possible that Dennison and Lafaga are no longer

1

See also, Black’s Law Dictionary (9th ed. 2009 (defining
assault, inter alia, as “The threat or use of force on another
that causes that person to have a reasonable apprehension of
imminent harmful or offensive contact; the act of putting another
person in reasonable fear or apprehension of an immediate battery
by means of an act amounting to an attempt or threat to commit a
battery.”
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incarcerated at OCCC.2

Moreover, although given ample

opportunity to do so, Plaintiff relates no facts showing that he
has actually been threatened by these Defendants or by any other
individuals at OCCC.

In short, Plaintiff does not allege facts

to support the existence of an imminent danger of serious
physical injury when he commenced this action.

See Andrews v.

Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (“Andrews II”)
(“the 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”).
Although Andrews II holds that the imminent danger
faced by the prisoner is not limited to the time frame of the
filing of a complaint, and may be satisfied by alleging a danger
that is ongoing, Plaintiff fails to set forth any facts showing
that he is subject to a plausible, ongoing threat of imminent
danger now.

Unlike Andrews II,3 Plaintiff alleges no facts

indicating that any individual, particularly no named Defendant,
has threatened him, knew of and disregarded harm to him, or
otherwise may be seen as plausibly causing Plaintiff imminent

2

Neither Lafaga nor Dennison is listed as currently
incarcerated on the Hawaii SAVIN criminal offender database for
DPS incarcerated inmates. See https://www.vinelink.com/vinelink.
3

The plaintiff in Andrews alleged that the threat he faced
from contagious diseases violated the Eighth Amendment’s
prohibition against cruel and unusual punishment, and submitted
specific facts supporting such a claim. See 493 F.3d at 1050.
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danger of physical injury.

Plaintiff does not indicate that Alo,

Dennison, or Lafaga is even in contact with him.

It is

abundantly clear that Plaintiff’s vague fear is based on an
attack that allegedly occurred three years ago.

See Marshall v.

Fla. Dep’t of Corr., 2009 WL 1873745 at *1 (N.D. Fla. June 27,
2009) (finding “vague and non-specific threats and ‘danger’ at
the hands of correctional officers” insufficient to meet
§ 1915(g)’s “imminent danger of serious physical injury”
exception)

Plaintiff fails to allege the imminent danger of

serious physical injury necessary to bypass § 1915(g)’s
restriction on his filing suit without prepayment of the filing
fee.
II.

CONCLUSION

For the reasons set forth above, the court:
(1)

DENIES Plaintiff’s in forma pauperis application;

(2)

DISMISSES this action sua sponte without prejudice for

Plaintiff’s failure to prepay the $350 filing fee pursuant to 28
U.S.C. § 1914(a);
(3) NOTIFIES Plaintiff that he is barred from proceeding in
forma pauperis in future federal civil actions or appeals while
he is incarcerated pursuant to 28 U.S.C. § 1915(g), without a
showing of imminent danger of serious physical injury; and

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(4) CERTIFIES that an appeal from this Order would be
frivolous and therefore, not taken in good faith pursuant to 28
U.S.C. § 1915(a)(3).

See Coppedge v. United States, 369 U.S.

438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir.
1977) (indigent appellant is permitted to proceed IFP on appeal
only if appeal would not be frivolous).
(5)

The Clerk SHALL close the file.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 20, 2012.

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

Tierney v. Alo, et al., Civ. No. 11-00681 DAE/KSC; Order Denying IFP
application and Dismissing Action/3 Strikes Ords/DMP/2012/Tierney 12-59 som
(fail to show cause 1915(g)

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