Tierney vs. Alo; et al.

Filing 5

ORDER TO SHOW CAUSE - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 2/24/12. ("In light of his past dismissals, and because Plaintiff does not plausibly allege that he is under imminent danger of serious physical injury, Plaintiff is ordered to show cause within thirty days from the date this order is filed, on or before March 25, 2012, why this action should not be dismissed pursuant to 28 U.S.C. § 1915(g). In the alternative, Plaintiff may avoid dismissal by paying the ful l $350.00 filing fee by the court's deadline. Because Plaintiff's pending IFP application is incomplete, it is DENIED. See 28 U.S.C. § 1915(a)(2). If Plaintiff intends to show cause, rather than pay the filing fee, he is ORDER ED to concurrently submit a fully completed IFP application. Failure to file a response within thirty days from the date of this order, March 25, 2012, showing good cause, or to pay the full filing fee, will result in the dismissal of this action wit hout further notice to Plaintiff. All pending motions are DENIED without prejudice to refiling after Plaintiff's in forma pauperis status has been determined.") ( Show Cause Response due by 3/25/2012. Motions term inated: 3 MOTION for Leave to Proceed in forma pauperis filed by Michael C. Tierney, 4 MOTION to Appoint Counsel filed by Michael C. Tierney.) (emt, )CERTIFICATE OF SERVICEParticipants registered to receiv e electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Michael C. Tierney were served by first class mail at the address of record on February 24, 2012. An Application to Proceed in Forma Pauperis by a Prisoner form with instructions was included in the mailing to Mr. Tierney.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
) CIVIL NO. 12-00059 SOM/KSC
)
Plaintiff,
)
) ORDER TO SHOW CAUSE
vs.
)
)
ACO S. ALO, CARL DENNISON,
)
BRANDON LAFAGA,
)
)
Defendants.
)
______________________________ )
MICHAEL C. TIERNEY, #A0201434

ORDER TO SHOW CAUSE
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 now fears for his life that unnamed
OCCC staff “will use inmates or staff to attack me again.”
#1, Compl. at 5.

ECF

Plaintiff is ORDERED to show cause why he

should be allowed to proceed in forma pauperis in this action.
//
//
//
//

I. DISCUSSION
A.

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.

Id.

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. 0800326 JMS Doc. No. 4 (D. Haw. 2008) (finding complaint failed to
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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’s awareness of

these strikes is further suggested by his failure to
affirmatively answer the form complaint’s query as to whether he
has brought other lawsuits while a prisoner.
questions the “[r]elevancy” of this question.

He instead
See Doc. No. 1 at

3.
B.

Plaintiff Fails to Allege Imminent Danger of Serious
Physical Injury
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.
§ 1915(g).

28 U.S.C.

Plaintiff alleges that, three years ago, in May 2009,

while he was incarcerated at OCCC, Defendant Alo, a guard at the
prison, instructed inmates Defendants Dennison and Lafaga to
attack Plaintiff.

Plaintiff says that, since being recently

transferred 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.
4

Plaintiff does not say that Defendants Alo, Dennison,
and Lafaga remain at OCCC, continue to threaten him, or otherwise
pose a continuing threat towards him.

OCCC generally houses pre-

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

See

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

It is

quite possible that Dennison and Lafaga are no longer
incarcerated at OCCC.

Moreover, 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) (“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”).
In Andrews, the Ninth Circuit adopted the view that
“requiring a prisoner to ‘allege [ ] an ongoing danger’--the
standard adopted by the Eighth Circuit--is the most sensible way
to interpret the imminency requirement.”

Id. at 1056 (citing

Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 2003)).

Andrews

holds that the imminent danger faced by the prisoner need not be
limited to the time frame of the filing of the complaint, but may
be satisfied by alleging a danger that is ongoing.

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Plaintiff

could, therefore, possibly satisfy the imminent danger exception
by alleging an ongoing threat.
Plaintiff, however, fails to allege specific facts
indicating that he is in imminent danger.

Unlike the plaintiff

in Andrews who alleged facts indicating a particular threat,1
Plaintiff fails to allege facts indicating that a specific
Defendant knew of harm to Plaintiff and disregarded it, causing
some injury to Plaintiff.

Plaintiff alleges no facts indicating

that Defendants Alo, Dennison, or Lafaga are currently subjecting
him to imminent injury, or are even in contact with him.
Plaintiff’s vague fear is based on an attack that allegedly
occurred three years ago.
On the present record, this case is distinguishable
from Andrews. In Andrews, the plaintiff alleged facts indicating
that he had suffered a particular injury, that the defendants
knew of a particular harm to him, and that the defendants had
failed to act to address the harm.

In other words, the plaintiff

in Andrews alleged sufficient facts to put the named defendants
on notice of the harm.

By contrast, Plaintiff’s allegations here

are exceedingly vague.

See Marshall v. Florida Dept. of

Corrections, 2009 WL 1873745 at *1 (N.D. Fla. June 27, 2009)

1

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.
6

(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 does not articulate specific facts indicating that any
named Defendant is subjecting him to imminent danger from a
particular harm.

Plaintiff thus 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.
C.

Order to Show Cause
Andrews allows the court to raise the § 1915(g) problem

sua sponte, but generally requires the court to notify the
prisoner of the earlier dismissals it considers support a
§ 1915(g) dismissal and to give the prisoner an opportunity to be
heard on the matter before dismissing the action.
1120.

See id. at

Once a court gives such notice, the prisoner bears the

burden of showing that § 1915(g) does not bar pauper status for
him.

398 F.3d at 1116.
In light of his past dismissals, and because Plaintiff

does not plausibly allege that he is under imminent danger of
serious physical injury, Plaintiff is ordered to show cause
within thirty days from the date this order is filed, on or
before March 25, 2012, why this action should not be dismissed
pursuant to 28 U.S.C. § 1915(g).

In the alternative, Plaintiff
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may avoid dismissal by paying the full $350.00 filing fee by the
court’s deadline.
Because Plaintiff’s pending IFP application is
incomplete, it is DENIED.

See 28 U.S.C. § 1915(a)(2).

If

Plaintiff intends to show cause, rather than pay the filing fee,
he is ORDERED to concurrently submit a fully completed IFP
application.

Failure to file a response within thirty days from

the date of this order, March 25, 2012, showing good cause, or to
pay the full filing fee, will result in the dismissal of this
action without further notice to Plaintiff.

All pending motions

are DENIED without prejudice to refiling after Plaintiff’s in
forma pauperis status has been determined.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 24, 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 To Show Cause; psas/3
Strikes Ords/DMP/2012/Tierney 12-59 som

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