Tia v. Antonio et al

Filing 16

ORDER DENYING MOTION TO COMPEL ADHERENCE AND DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(e)(2). Signed by JUDGE LESLIE E. KOBAYASHI on 9/27/2012. Excerpt of Order: "[T]he action is DISMISSED with prejudice. The Cle rk shall close the file and note that this dismissal may constitute a strike pursuant to 28 U.S.C. § 1915(e)(2). The court further CERTIFIES that there are no non-frivolous issues for appeal and an appeal in this action would not be taken in goo d faith...." (afc) 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
PETER R. TIA, #A1013142,

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Plaintiff,
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vs.
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LYLE ANTONIO, et al.,
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Defendants.
_____________________________ )

NO. 1:12-cv-00295 LEK/KSC
ORDER DENYING MOTION TO
COMPEL ADHERENCE AND
DISMISSING ACTION PURSUANT TO
28 U.S.C. § 1915(e)(2)

ORDER DENYING MOTION TO COMPEL ADHERENCE AND
DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(e)(2)
Before the court is Petitioner’s “Motion to Compel
Adherence To 8-15-12 Notice of Jan. 2012 HPA Hrg. Sched.”
ECF #15.

Mot.,

Plaintiff demands the court take notice of his

August 21, 2012, document, ECF #11, in which he directed the
court to a Notice of Hearing from the Hawaii Paroling Authority.
Plaintiff again protests the dismissal of his Complaint as
frivolous and for failure to state a claim.

See Ord., ECF #8.

Plaintiff was granted leave to amend the Complaint on or before
August 24, 2012.

Plaintiff states that he files this Motion “in

lieu of 8-24-12 Amendment,” and appears to argue that the
dismissal of his Complaint with leave to amend constitutes an
Eighth Amendment violation.

See Mot. at 1.

The court took notice of Plaintiff’s August 21, 2012
filing when it construed the document as a motion for
reconsideration of the Order dismissing Plaintiff’s Complaint.
See Ord. Denying Motion for Reconsideration, ECF #14.

For the

reasons set forth in the Order denying reconsideration, this
court DENIES the present Motion.
Plaintiff has failed to adequately and timely amend the
Complaint despite being given ample time to do so.

Petitioner

also states that he has no intention of filing an amended
complaint.

Moreover, amendment appears futile.

this action is DISMISSED with prejudice.

Accordingly,

The Clerk shall close

the file and note that this dismissal may constitute a strike
pursuant to 28 U.S.C. § 1915(e)(2).
The court further CERTIFIES that there are no nonfrivolous issues for appeal and an appeal in this action would
not be taken in good faith.

28 U.S.C. § 1915(a)(3); Coppedge v.

United States, 369 U.S. 438, 445 (1962); Hooker v. American
Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002).
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, September 27, 2012.

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

Tia v. Antonio, et al., 1:12-cv-00295 LEK-KSC; ORDER DENYING MOTION TO COMPEL
ADHERENCE AND DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(e)(2); G:\docs\prose
attys\Ords\DMP\2012\Tia 12-295 lek (dsm C ftsc & friv fail to amend).wpd

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