Tierney v. Abercrombie, et al

Filing 9

ORDER DENYING 8 IN FORMA PAUPERIS APPLICATION AND DISMISSING ACTION. Signed by JUDGE LESLIE E. KOBAYASHI on June 29, 2012. (bbb, )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). 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

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)
Plaintiff,
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vs.
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NEIL ABERCROMBIE, et al.,
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)
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Defendants.
______________________________ )

CIVIL NO. 12-00293 LEK/KSC
ORDER DENYING IN FORMA
PAUPERIS APPLICATION AND
DISMISSING ACTION

ORDER DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING ACTION
Before the court is pro se Plaintiff
Michael C. Tierney’s prisoner civil rights complaint and amended
in forma pauperis (“IFP”) application.

Plaintiff alleges that

Defendants Hawaii Governor Neil Abercrombie, Oahu Community
Correctional Center (“OCCC”) Warden Francis Sequeira, OCCC
Adjustment Committee Member Rochelle Nieto, and OCCC Staff
Investigator Sgt. Maesaka violated his constitutional rights by
placing him in administrative segregation, finding him guilty of
a disciplinary infraction, and converting OCCC from “single
occupancy prison to double occupancy.”

Compl., ECF #1 at 5-7.

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 May 24, 2012.
ECF #1.

Compl.,

Plaintiff alleges that Governor Abercrombie converted

OCCC’s holding unit from single to double occupancy cells, Warden
Sequeira placed him in administrative segregation without cause
or evidence in retaliation for filing numerous civil complaints,
and Nieto falsely accused him of unspecified charges, failed to
investigate, failed to produce evidence against him, and kept him
in administrative segregation.

Compl., ECF #1 at 5-7.

alleges no facts against Sgt. Maesaka.

Plaintiff

Plaintiff says he is

suffering from claustrophobia and nightmares and lives in
constant fear for his life.

When he filed this Complaint,

Plaintiff was incarcerated at OCCC but was transferred to the
Halawa Correctional Facility (“HCF”) thereafter.
On May 31, 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 three-strike
bar under 28 U.S.C. § 1915(g).
#6.

Order to Show Cause (“OSC”), ECF

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 June 8, 2012, Plaintiff

responded to the OSC and filed a new, fully completed IFP
application.

See Response, ECF #7, IFP application, #8.

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II.

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).
The federal courts’ publicly available electronic
records, http://pacer.psc.uscourts.gov, (“PACER”), reveal that
Plaintiff has filed numerous civil actions in this and other
federal courts that were dismissed as frivolous or for failing to
state a claim.1

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);

1

The court may raise the § 1915(g) problem sua sponte, and
the prisoner bears the ultimate burden of persuading the court
that § 1915(g) does not bar pauper status for him. See Andrews
v. King, 398 F.3d 1113, 1120-21 (9th Cir. 2005) (“Andrews I”).
3

Tierney v. United States, Civ. No. 10-00675 HG (D. Haw. 2010)
(dismissing as frivolous and finding Plaintiff had accrued three
strikes); Tierney v. United States, Civ. No. 10-00166 HG (D. Haw.
2010) (dismissing as frivolous and finding the dismissal counted
as a strike); Tierney v. United States, Civ. No. 08-00543 HG (D.
Haw. 2010) (dismissing as frivolous); Tierney v. United States,
Civ. No. 08-00326 JMS (D. Haw. 2008) (finding complaint failed to
state a claim); Tierney v. Quiggle, Civ. No. 96-5995 (W.D. Wash.
1997).
III.

DISCUSSION

In his Response, Plaintiff asserts he is in imminent
danger of serious physical injury because he has been repeatedly
placed in close proximity to inmates on his enemy list and “has
suffered harm as a result.”

Response, ECF #7.

Plaintiff further

claims that he is suffering from respiratory distress due to
exposure to friable asbestos at HCF, he is being tortured by the
dentists at HCF, OCCC, and at the Waiawa Community Correctional
Center (“WCCC”), and denied medical and dental care.
These vague allegations do not support the existence of
imminent danger of serious physical injury related to Defendants
Abercrombie’s, Sequeira’s, Nieto’s, and Maesaka’s alleged actions
placing Plaintiff in a double occupancy administrative
segregation cell or finding him guilty of a disciplinary
infraction.

First, Plaintiff’s obscure claims that he has
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suffered past harms because he was housed near his enemies are
completely unrelated to his claims here and do not support a
finding that he was in danger at the time that he commenced this
action against Defendants.

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”).

This applies as well to his alleged asbestos exposure

after he transferred to HCF; it is clear he is complaining of the
conditions of confinement at OCCC not at HCF in this action.
Second, Plaintiff does not explain how Defendants are
liable for his alleged exposure to asbestos after he was
transferred to HCF, or for the alleged denial of dental and
medical care.

These allegations do not form the basis of his

claims against Abercrombie, Sequeira, Nieto, and Maesaka.
Moreover, Plaintiff has raised his medical and dental care and
asbestos claims in other cases,2 and cannot “bootstrap” these
allegations as alleged evidence of imminent danger of serious
physical injury for his claims against Defendants Abercrombie,
Sequeiera, Nieto, and Maesaka.

That is, Plaintiff cannot use

these unrelated claims against different and unrelated defendants

2

See e.g., Tierney v. Atkins, 1:12-cv-000308 (alleging
asbestos exposure); Tierney v. Okamoto, 1:11-cv-00800 (alleging
inadequate dental care); Tierney v. Unknown Dentist,
1:11-cv-00369 (alleging inadequate dental care); Tierney v.
Hamada, 1:12-cv-00117 (alleging inadequate dental care).
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to support a finding of imminent danger of serious physical
injury in every subsequent action that he files.
Plaintiff articulates no specific facts indicating that
Defendants are or were subjecting him to imminent danger from any
particular harm at the time that he filed this Complaint, or that
their decision to place him in a double cell or find him guilty
of a disciplinary infraction subjected him to such harm.
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.
The court has

explicitly informed Plaintiff numerous

times that he has accrued three strikes, in previous cases and in
the OSC in this action.

See Andrews I, 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 that 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).

Plaintiff ignores the court’s explicit instructions in the OSC
and provides no specific facts from which the court can infer
that he was in imminent danger of serious physical injury at the
time he filed this action, or as a result of any named
Defendant’s actions.

Plaintiff fails to allege the imminent

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danger of serious physical injury necessary to bypass § 1915(g)’s
restriction on his filing suit without prepayment of the filing
fee.
IV. CONCLUSION
For the reasons set forth above, the court:
(1) DENIES Plaintiff’s in forma pauperis application;
(2) DISMISSES this action 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 plausible showing of imminent danger of serious
physical injury;
(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); and
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(5) DIRECTS the Clerk of Court to close the case file.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, June 29, 2012.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

Tierney v. Abercrombie, 1:12-cv-00293 LEK/KSC; ORDER DENYING IN FORMA PAUPERIS
APPLICATION AND DISMISSING ACTION; psas/3 Strikes Ords/DMP/2012/Tierney 12-293
lek (dny ifp dsm)

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