Tia v. Borges et al

Filing 16

ORDER DENYING IFP APPLICATION AND DISMISSING ACTION. Signed by JUDGE HELEN GILLMOR on 4/27/2012. ~ The Court: (1) DENIES Plaintiff's in forma pauperis application; (2) DISMISSES this action sua sponte without prejudice for Plainti ff'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 informa 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 (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). (5) And DIRECTS the Clerk to close the file. (ecs, )No COS issued for this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
) CIVIL NO. 12-00158 HG/BMK
)
Plaintiff,
) ORDER DENYING IFP APPLICATION
) AND DISMISSING ACTION
vs.
)
)
DOVIE BORGES, et al.,
)
)
)
Defendants.
______________________________ )
PETER RAY TIA, #A1013142,

ORDER DENYING IFP APPLICATION AND DISMISSING ACTION
Before the court is pro se Plaintiff Peter Ray Tia’s
prisoner civil rights Complaint and in forma pauperis (“IFP”)
application.

ECF #1, #3.

Plaintiff alleges state agencies,

employees, and private individuals have engaged in a conspiracy
to violate his constitutional rights since 2008.

See generally,

ECF #1, Compl.
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.

DISCUSSION

On March 29, 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 #4 (“OSC”).

On April 20, 2012, Plaintiff responded to the OSC.

ECF

#15 (Motion to Order IFP and Respond to 3-29-12 Order to Show
Cause).
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).
Determining whether a prisoner’s actions count as
strikes under section 1915(g) requires the court to conduct a
“careful examination of the order dismissing an action, and other
relevant information,” to determine if the action was “dismissed
because it was frivolous, malicious or failed to state a claim.”
Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005).

“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.”
at 1120.

Id.

Andrews therefore allows the court to raise sua sponte

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

Id.

Plaintiff’s Prior Dismissals
The federal courts’ electronic case database, available

at: http://pacer.psc.uscourts.gov (“PACER”), reveals that
Plaintiff has filed numerous federal civil actions that were
dismissed as frivolous or as failing to state a claim.1

Several

of these actions explicitly informed Plaintiff that they
constituted a strike 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).

The court also notified Plaintiff of

these strikes in the OSC.

See ECF #4.

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.

28 U.S.C. § 1915(g).

1

See e.g., Tia v. Fujita, No. 1:08-cv-00575 HG (failure to
state a claim); Tia v. Criminal Investigation Demanded, No. 1:10cv-00383 SOM (frivolous and failure to state a claim); Tia v.
Criminal Investigation, No. 1:10-cv-00441 DAE (frivolous and
failure to state a claim); Tia v. Baker, No. 11-cv-00098 HG
(dismissed under § 1915(g), after notifying Plaintiff of the
cases the court considered strikes and no finding of imminent
danger); Tia v. Doe Defendants as Aggrieved, No. 1:11-cv-00352
SOM (dismissed after notifying Plaintiff of the cases the court
considered strikes and no finding of imminent danger); Tia v.
Mollway, No. 1:11-cv-00421 JMS (dismissed after finding no
allegation of imminent danger and that Plaintiff was on notice of
prior cases considered as strikes).
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C.

Plaintiff Fails to Demonstrate Imminent Danger of Serious
Physical Injury
Plaintiff’s complaint alleges a conspiracy to deprive

him of his constitutional rights, including alleged obstruction
of justice, theft, grievance misconduct, denial of parole, access
to the courts, and due process.

See generally, ECF #1, Compl.

Plaintiff does not, however, present facts that support a finding
of imminent danger of serious physical injury regarding these
claims as of the date he filed his complaint.
Plaintiff attempts to bolster his allegation that he is
in serious danger of physical injury for the purposes of
proceeding IFP in the present action by referring to his pending
claims in Tia v. Paderes, 1:11-cv-00459 LEK.

See ECF #1, Compl.

at 31-37, Counts 14-17; ECF #15, Response to OSC at ¶¶ 2, 3, 5.
In that case, however, because Plaintiff alleged the denial of
adequate nutrition resulting in significant weight loss, his
claims were deemed sufficient to invoke § 1915(g)’s imminent
danger of serious physical injury exception.

As this Court

explained to Plaintiff in the OSC, he may not reallege these
claims in the present case to circumvent § 1915(g)’s bar.
Plaintiff’s conspiracy claims in the instant case are
wholly unrelated to his denial of adequate nutrition claims in
1:11-cv-00459.

Plaintiff attempts to tie these cases together by

alleging that there is a grand, ongoing conspiracy against him
perpetrated by prison officials and private individuals.
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Plaintiff has been alleging variations on this conspiracy theory
since at least 2008.2

Plaintiff’s claims in this action are too

attenuated to be considered part of his claims in 1:11-cv-00459.
See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007)
(explaining why unrelated claims against different defendants
belong in different suits); Aul v. Allstate Life Ins. Co., 993
F.2d 881, 884 (9th Cir. 1993) (“A claim based on different rights
and established by different transactional facts will be a
different cause of action.”); see also Fed. R. Civ. P. 18(a).
Plaintiff also suggests that an “orbital eye fracture”
he suffered during an altercation at OCCC in 2007, is sufficient
to show imminent danger of serious physical injury now.

See ECF

#1, Compl. at 27-28, 39; Counts 12, 19; ECF #15, Response to OSC
at 3 ¶ 1.

Plaintiff is mistaken.
Plaintiff must demonstrate that he was “under imminent

danger of serious physical injury” at the time he filed the
complaint.

Andrews v. Cervantes, 493 F.3d 1047, 1053, 1055 (9th

Cir. 2007) (explaining that the exception to the three-strikes
rule applies only “if the complaint makes a plausible allegation
that the prisoner faced ‘imminent danger of serious physical

2

See e.g., 1:08-cv-00575 (alleging that HCF prison
officials engaged in a conspiracy to steal Plaintiff’s social
security checks); 1:10-cv-00383 (alleging a conspiracy against
him by prison officials commencing in 1996 and seeking a criminal
investigation of his allegations); 1:10-cv-00441 (same); 11-cv00098 (same).
5

injury’ at the time of filing”).

Plaintiff admits that the eye

injury occurred in 2007, and that he is no longer incarcerated at
OCCC.

Plaintiff does not allege that his 2007 eye injury has

been untreated.

Rather, Plaintiff raises the 2007 eye injury to

support his claim that he was recently improperly denied parole
because the 2007 altercation apparently remains in his prison
record.

This is insufficient to demonstrate that Plaintiff is in

imminent danger of serious physical injury.
Plaintiff alleges no facts in the Complaint or in his
Response to the OSC that indicate there is a current threat to
his safety at HCF, other than his inadequate nutrition claims
currently pending in his other case and vague allegations of an
eye injury suffered at a different prison five years ago.
Because Plaintiff fails to articulate specific facts
demonstrating that any named defendant is subjecting him to
imminent danger from a particular harm he fails to meet the
exception 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);

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(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
(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) And DIRECTS the Clerk to close the file.
IT IS SO ORDERED.
DATED: April 27, 2012, Honolulu, Hawaii.

/S/ Helen Gillmor
Helen Gillmor
United States District Judge

Tia v. Borges, et al., Civ. No. 12-00158 HG/BMK; ORDER DENYING IFP APPLICATION
AND DISMISSING ACTION; psas/3 Strikes Ords/DMP/2012/Tia 12-158 hg bmk (dny IFP
fail show cause 3 stks)

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