Grandinetti v. Inverness Medical Company et al

Filing 6

ORDER DISMISSING COMPLAINT AND ACTION. Signed by JUDGE HELEN GILLMOR on 9/5/2012. ~ The First Amended Complaint and action are DISMISSED without prejudice. Grandinetti may reassert these claims in a new action by concurrently submitting the enti re $350.00 filing fee. Any pending motions are DISMISSED. The Clerk shall close the case.(ecs, )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 9/6/2012

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FRANCIS A. GRANDINETTI,
#A0185087,

)
)
)
Plaintiff,
)
)
vs.
)
)
INVERNESS MEDICAL COMPANY, et )
al.,
)
)
Defendants.
)
_____________________________

NO. 1:12-cv-00489 HG/RLP
ORDER DISMISSING COMPLAINT
AND ACTION

ORDER DISMISSING COMPLAINT AND ACTION
Before the court is pro se plaintiff Francis A.
Grandinetti, II’s prisoner civil rights action.
Amended Compl., ECF #2.1

See First

Grandinetti is a Hawaii inmate confined

at the Saguaro Correctional Center (“SCC”), in Eloy, Arizona.
Grandinetti complains about drug testing and illegal alcohol
manufacturing at SCC.

Grandinetti has not submitted an in forma

pauperis application nor paid the $350 statutory filing fee.
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
1

Grandinetti submitted two nearly identical complaints in
the same envelope. One, however, has additional details regarding
his claims and is deemed his First Amended Complaint.

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.
Grandinetti has filed over 150 federal civil actions
and appeals since 1995.
(PACER Case Locator).

See, http://pacer.psc.uscourts.gov.

At least three of Plaintiff’s prior

lawsuits qualify as “strikes” under § 1915(g):
(1)

Grandinetti v. U.S. Marshals Serv., 1:00-cv00489 SOM-KSC (D. Haw., § 1983 case dismissed
for failure to state a claim, Aug. 1, 2001);

(2)

Grandinetti v. Bobby Ross Group Inc., et al.,
1:96-cv-00117 (E.D. Tex., § 1983 case
dismissed as frivolous and for failure to
state a claim on Mar. 5, 1999); and

(3)

Grandinetti v. Iranon, et al., 1:96-cv-00101
(E.D. Tex., § 1983 case dismissed as

2

frivolous and for failure to state a claim on
Jan. 26, 1998).2
Grandinetti 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).

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.”

Kinnell v. Graves, 265 F.3d

1125, 1128 (10th Cir. 2001).
“[T]he 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”
Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007).

Andrews v.

“[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 “imminent

danger of serious physical injury” cannot be triggered solely by
2

The court has previously notified Grandinetti of his many
strikes. See e.g., Grandinetti v. Stampfle, 1:05-cv-00692 HG;
Grandinetti v. Shimoda, 1:05-cv-00442 JMS. Grandinetti did not
seek reconsideration in either of these cases, failed to perfect
his appeal in 1:05-cv-00442 JMS, and never appealed in 1:05-cv00692 HG. Grandinetti had the opportunity to object to the
court’s three-strikes findings when these orders were issued or
on appeal but did not.
3

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).
Grandinetti complains that he must undergo periodic
drug testing by a private company, his test results are divulged
to the prison, and other inmates make alcohol at the prison.
These allegations do not support a finding that Grandinetti is in
imminent danger of serious physical injury.

He may not,

therefore, proceed without prepayment of the civil filing fee,
pursuant to 28 U.S.C. § 1915(g).
The First Amended Complaint and action are DISMISSED
without prejudice.

Grandinetti may reassert these claims in a

new action by concurrently submitting the entire $350.00 filing
fee.

Any pending motions are DISMISSED.

The Clerk shall close

the case.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, September 5, 2012.

/S/ Helen Gillmor
Helen Gillmor
United States District Judge

Grandinetti v. Inverness Medical Company, et al., 1:12-cv-00489 HG/RLP; ORDER
DISMISSING COMPLAINT AND ACTION; psas\3 Strikes Ords\dmp 2012\Grandinetti 12489 HG (1915(g))

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