Tia v. Gribbin et al

Filing 4

ORDER DISMISSING COMPLAINT AND ACTION PURSUANT TO 28 U.S.C. § 1915(g): "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 submi tting the entire $350.00 filing fee when he files the action. Any pending motions are terminated. The Clerk shall close the case. IT IS SO ORDERED.". Signed by JUDGE LESLIE E. KOBAYASHI on August 27, 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
PETER R. TIA, #A1013142,

)
)
Plaintiff,
)
)
vs.
)
)
ACO GRIBBIN, et al.,
)
)
)
Defendants.
______________________________ )

CIVIL NO. 12-00473 LEK/RLP
ORDER DISMISSING COMPLAINT AND
ACTION PURSUANT TO 28 U.S.C.
§ 1915(g)

ORDER DISMISSING COMPLAINT AND ACTION
PURSUANT TO 28 U.S.C. § 1915(g)
Before the court is pro se Plaintiff Peter Ray Tia’s
prisoner civil rights Complaint and in forma pauperis (“IFP”)
application.

Plaintiff complains of mishandled mail,

conspiracies, and alleged due process abuses at the Halawa
Correctional Facility (“HCF”).
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).

At least three of Plaintiff’s prior cases qualify

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

Plaintiff is well aware of the three-strike rule and that
he has accrued at least three strikes. This court and the Ninth
Circuit Court of Appeals have notified Plaintiff about these and
many other strikes in his earlier actions. See e.g., Tia v.
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,
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

Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Luedtke v.
Bertrand, 32 F. Supp. 2d 1074, 1077 (E.D. Wis. 1999).

1:11-cv-00098
1:11-cv-00352
after finding
was on notice

HG; Tia v. Doe Defendants as Aggrieved,
SOM; Tia v. Mollway, 1:11-cv-00421 JMS (dismissed
no allegation of imminent danger and that Plaintiff
of prior cases considered as strikes).
3

Plaintiff’s Complaint is incoherent; he broadly alleges
that Defendants, including prison guards, the Hawaii governor,
and the City and County of Hawaii are or have been conspiring
with officials from the Corrections Corporation of America, the
Hawaii Paroling Authority, and a white supremacist gang.

He

alleges that his mail has been mishandled, court cases have been
obstructed, and his release has been delayed.

He complains of

his “kidnapping” and continued incarceration.

These allegations

do not support a finding that Plaintiff was in imminent danger of
serious physical injury when he filed this Complaint.

Plaintiff

may not proceed in this action without prepayment of the civil
filing fee, pursuant to 28 U.S.C. § 1915(g).
III.

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

Any pending

The Clerk shall close the case.

IT IS SO ORDERED.

4

DATED:

Honolulu, Hawaii, August 27, 2012.

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

Tia v. ACO Gribbin, et al., 1:12-00473 LEK/RLP; ORDER DISMISSING
COMPLAINT AND ACTION PURSUANT TO 28 U.S.C. § 1915(g); psas/3 Strikes
Ords/DMP 2012/Tia 12-473 lek (no imm. dng)

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