Grandinetti v. Champion Air

Filing 4

ORDER DISMISSING COMPLAINT AND ACTION - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 9/27/12. (emt, )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). Francis A. Grandinetti served by first class mail at the address of record on September 27, 2012.

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

)
)
Plaintiff,
)
)
vs.
)
)
CHAMPION AIR, et al.,
)
)
)
Defendants.
_____________________________ )

NO. 1:12-cv-00528 SOM/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.

Grandinetti is a

Hawaii inmate confined at the Saguaro Correctional Center
(“SCC”), in Eloy, Arizona.

Grandinetti appears to be complaining

about his transfer from Memphis, Tennessee, to Phoenix, Arizona,
in 2007 and to be seeking injunctive relief.

Grandinetti has

neither 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
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 many civil actions and appeals in
the federal courts since 1995.

See PACER Case Locator,

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
frivolous and for failure to state a claim on
Jan. 26, 1998).1

1

The court has notified Grandinetti of his strikes more
than once. 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-cv2

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
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).

00692 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

Grandinetti’s claims are largely nonsensical and are
directed at the airlines on which he and other inmates traveled
in 2007.

They do not support a finding that Grandinetti is in

imminent danger of serious physical injury.

He may not proceed

without prepayment of the civil filing fee, pursuant to 28 U.S.C.
§ 1915(g).
The 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.
pending motions are DISMISSED.

Any

The Clerk shall close the case.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, September 27, 2012.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Grandinetti v. Champion Air, et al., 1:12-cv-00528 SOM/RLP; ORDER DISMISSING
COMPLAINT AND ACTION; psas\3 Strikes Ords\dmp 2012\Grandinetti 12-528 SOM
(1915(g))

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