Tia v. Espinda et al

Filing 6

DISMISSAL ORDER: "Accordingly, the Complaint and action are DISMISSED ithout prejudice. If Plaintiff wishes to reassert these claims in the future, he may do so by concurrently submitting the entire $350.00 filing fee when he files the a ction. Any pending motions are terminated. The Clerk shall close the case. IT IS SO ORDERED." Signed by JUDGE LESLIE E. KOBAYASHI on August 20, 2012. (bbb, )CERTIFICATE OF SERVICEParticipants registered to r eceive 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
) CIVIL NO. 12-00351 LEK/KSC
)
Plaintiff,
) DISMISSAL ORDER
)
vs.
)
)
WARDEN NOLAN ESPINDA, et al.,
)
)
)
Defendants.
______________________________ )
PETER R. TIA, #A1013142,

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

On June 29, 2012, Plaintiff was ordered to show

cause on or before July 27, 2012, why he should be allowed to
proceed in forma pauperis in this action.

ECF #5.

Plaintiff has

not responded to the court’s order.
I. 28 U.S.C. § 1915(g)
A prisoner may not bring a civil action or appeal a
civil judgment in forma pauperis 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).

“[Section] 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.”
v. King, 398 F.3d 1113, 1121 (9th Cir. 2005).

Andrews

“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.”

Id.

at 1120.
Plaintiff is well acquainted with the federal courts,
having filed more than twenty-seven federal civil actions and
appeals since 2001. See http://pacer.psc.uscourts.gov. (PACER
Case Locator).

In its Order to Show Cause, the court notified

Plaintiff that the following cases qualified as “strikes” under
§ 1915(g):
(1)

Tia v. Fujita, 1:08-cv-00575 HG (D. Haw. Jan.
27, 2009) (dismissed for failure to state a
claim);

(2)

Tia v. Criminal Investigation Demanded, 1:10cv-00383 SOM (D. Haw. Aug. 5, 2010)
(dismissed as frivolous and for failure to
state a claim); and

(3)

Tia v. Criminal Investigation, 1:10-cv-00441
DAE (D. Haw. Jul. 30, 2010) (dismissed as
frivolous and for failure to state a claim).1

1

The court and the Ninth Circuit Court of Appeals have also
notified Plaintiff regarding his many strikes. See e.g., Tia v.
2

Plaintiff may not bring a civil action without complete
prepayment of the $350.00 filing fee unless he is in imminent
danger of serious physical injury.
II.

28 U.S.C. § 1915(g).

NO IMMINENT DANGER

To meet the “imminent danger” requirement, the “threat
or prison condition [must be] real and proximate,”

Ciarpaglini

v. Saini, 352 F.3d 328, 330 (7th Cir. 2003) (quoting Lewis v.
Sullivan, 279 F.3d 526, 531 (7th Cir. 2002)), and the allegations
must be “specific or credible.”
1125, 1128 (10th Cir. 2001).

Kinnell v. Graves, 265 F.3d

Further, “the availability of the

[imminent danger] exception turns on the conditions a prisoner
faced at the time the complaint was filed, not some earlier or
later time.”
2007).

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

“[T]he exception applies if the complaint makes a

plausible allegation that the prisoner faced ‘imminent danger of
serious physical injury’ at the time of filing.”

Id. at 1055.

Claims concerning an “imminent danger of serious physical injury”
cannot be triggered solely by complaints of past abuse.

See

Borges, App. No. 12-16158 (9th Cir. Aug. 9, 2012) (“[T]he
district court correctly determined that appellant has had three
or more prior actions or appeals dismissed as frivolous,
malicious, or for failure to state a claim[.]”); Tia v. Baker,
1:11-cv-00098 HG; Tia v. Doe Defendants as Aggrieved,
1:11-cv-00352 SOM; Tia v. Mollway, 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).
3

Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Luedtke v.
Bertrand, 32 F. Supp. 2d 1074, 1077 (E.D. Wis. 1999).
Plaintiff broadly alleges that defendants conspired to
deny him due process in relation to his criminal conviction and
federal civil actions and appeals.

These allegations do not

support a finding that he is in imminent danger of serious
physical injury.

Plaintiff may not proceed in this action

without prepayment of the civil filing fee, pursuant to 28 U.S.C.
§ 1915(g).
III.

FAILURE TO RESPOND TO THE ORDER TO SHOW CAUSE

Plaintiff also failed to respond to the Order to Show
Cause, despite the court’s explicit instructions and warning of
the consequences for failing to respond.

Plaintiff’s action is

therefore subject to dismissal for his failure to follow a court
order.

See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-62 (9th Cir.

1992); see also Edwards v. Marin Park, Inc., 356 F.3d 1058, 106465 (9th Cir. 2004) (“The failure of the plaintiff eventually to
respond to the court’s ultimatum -- either by amending the
complaint or by indicating to the court that [he] will not do so
-- is properly met with the sanction of a Rule 41(b) dismissal.”)
IV.

CONCLUSION

Accordingly, the Complaint and action are DISMISSED
without prejudice.

If Plaintiff wishes to reassert these claims

in the future, he may do so by concurrently submitting the entire
4

$350.00 filing fee when he files the action.
are terminated.

Any pending motions

The Clerk shall close the case.

IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, August 20, 2012.

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

Tia v. Espinda, et al., 1:12-00351 LEK/KSC; Dismissal Order; psas/3 Strikes Ords/DMP
2012/Tia 12-351 lek (fail to ans OSC; no imm. dng)

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