Tierney

Filing 15

ORDER DENYING MOTION FOR RECONSIDERATION AND ALL PENDING MOTIONS re 9 ; 10 ; 11 ; 12 ; 14 - - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 10/24/12. (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). Michael C. Tierney shall be served by first class mail at the address of record on October 25, 2012.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
In Re:

)
)
MICHAEL C. TIERNEY,
)
#A0201434,
)
_____________________________ )

NO. 1:12-cv-00532 SOM/KSC
ORDER DENYING MOTION FOR
RECONSIDERATION AND ALL
PENDING MOTIONS

ORDER DENYING MOTION FOR RECONSIDERATION AND ALL PENDING MOTIONS
Plaintiff moves for reconsideration of the October 2,
2012, order dismissing this action.
Order ECF #5.

See Mot., ECF #10; Dismissal

Plaintiff also requests in forma pauperis status,

ECF #9 and #14, and appointment of counsel, ECF #12, as well as a
hearing on his claims, and transfer to Hawaii ECF #11.
just filed a proposed amended complaint.

ECF #13.

He has

Plaintiff’s

Motions are DENIED.
I.

BACKGROUND

On September 26, 2012, Plaintiff attempted to file the
pleading in this action as Motion for Hearing in Tierney v.
Hamada, No. 1:12-cv-00117 SOM.

Because this “Motion” raised

unrelated claims against new and unidentified defendants, in an
apparent attempt to avoid 28 U.S.C. § 1915(g)’s restrictions
preventing Plaintiff from filing a new action in forma pauperis,
the court construed Plaintiff’s document as a new pleading and
opened a new prisoner civil rights case.

ECF #1.

Plaintiff’s

new pleading chiefly protested his transfer from Hawaii to
Arizona and sought a hearing on his allegedly illegal

“extradition.”

Id. at PageID #1.

Plaintiff also vaguely alleged

that he was being denied medical and dental care in Arizona and
was unable to qualify for parole given his transfer.

Id.

On October 2, 2012, the court dismissed this action
without prejudice to Plaintiff’s filing of a new action with
concurrent payment of the filing fee in Arizona.
Order, ECF #4.

Dismissal

The court specifically found that Plaintiff had

accrued three strikes under § 1915(g) and had failed to plausibly
allege that he was in imminent danger of serious physical injury;
he was therefore not entitled to proceed in forma pauperis.
at PageID #10-14.

Id.

Regarding Plaintiff’s vague claims that he was

being denied dental and medical care, the court held that
Plaintiff had failed to assert any facts supporting these claims,
had failed to name any individual in Arizona who was liable to
him, and had failed to explain why venue for such claims might
lie in Hawaii, rather than in Arizona, where the alleged
violations occurred.

Id. at PageID #13-14.

Plaintiff was not

given leave to amend any pleading; he was informed that he could
file a new action alleging these claims only with concurrent
payment of the filing fee or with a sufficient showing of
imminent danger, but that venue for that action would lie in
Arizona, not Hawaii.
Plaintiff now moves for reconsideration of the October
2, 2012, Dismissal Order, arguing that he should have been given

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leave to amend his claims before dismissal.

Plaintiff has

submitted a proposed amended complaint, naming Ted Sakai, the
Director of the Hawaii Department of Public Safety (“DPS”), Shari
Kimoto, DPS Mainland Branch Administrator, and Jeanette Baltero,
DPS Contract Monitor, as Defendants.

Plaintiff concludes, with

no supporting factual allegations or proof, that these
individuals are responsible for his allegedly illegal transfer to
Arizona, and for denying him medical and dental care in Arizona.
See Proposed Amended Compl., ECF #13, PageID #33, #36-38.
In support of his claims for the denial of dental and
medical care, Plaintiff attaches to his proposed amended
complaint medical requests that he says he submitted to the
Arizona prison medical department.
#13-3, #13-4, #13-5.

See Medical Requests, ECF

On September 6, 2012, Plaintiff complained

that he had a toothache, was in pain, and needed his teeth
cleaned.

ECF #13-3.

Less than a week later, on September 13,

2012, prison officials responded by informing Plaintiff that he
had been placed on the “routine list” for a dental appointment.
On September 25, 2012, Plaintiff submitted a second request,
stating that he had had a cancerous tumor removed on September
11, 2012, and needed to know when further tests would be
performed.

The next day, September 25, 2012, the prison nurse

made an appointment for Plaintiff and informed him that he was
scheduled to speak with medical personnel regarding his

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operation.

ECF #13-5.

On September 28, 2012, Plaintiff

submitted his third medical request, alleging that he had fallen
from his bunk and needed medical care.

ECF #13-4.

The very next

day, September 29, 2012, the medical department scheduled
Plaintiff for a medical appointment.
II.

Id.

LEGAL STANDARD

Rule 60(b) permits reconsideration based on: (1)
mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that by due diligence could not have been
discovered in time to move for a new trial under Rule 59; (3)
fraud, misrepresentation, or misconduct by an adverse party; (4)
the voidness of a judgment; (5) the satisfaction, release, or
discharge of a judgment, or the reversal or vacation of a prior
judgment upon which a ruling is based, or inequities in applying
a judgment prospectively; or (6) any other reason justifying
relief from the operation of the judgment.
60(b)(1)-(b)(6).

See Fed. R. Civ. P.

Rule 60 reconsideration is generally

appropriate in three instances: (1) when there has been an
intervening change of controlling law; (2) new evidence has come
to light; or (3) when necessary to correct a clear error or
prevent manifest injustice. School District No. 1J v. ACandS,
Inc., 5 F.3d 1255, 1262 (9th Cir. 1993).

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A.

Reconsideration
Plaintiff moves for reconsideration, stating that

prisoners are usually allowed to correct deficiencies in their
complaints by amendment before the court dismisses the action.
Plaintiff’s proposed amended complaint, however, fails to
convince this court to reconsider the Dismissal Order.

Although

Plaintiff carefully names only DPS Hawaii prison officials in the
amended complaint, in an apparent attempt to justify venue in
Hawaii, he fails to name or explain who in Arizona actually
denied him dental or medical care.

The court is not persuaded

that venue for these claims lies in Hawaii, despite Plaintiff’s
calculated maneuvering.
More importantly, Plaintiff commenced this action on
September 22, 2012, the day he signed his original pleading.
ECF #1.

See

Plaintiff’s own exhibits show that Arizona prison

medical personnel put him on the dental appointments list within
one week of his first request on September 6, 2012.

ECF #13-3.

This does not support Plaintiff’s vague claim that he was denied
dental care in Arizona.

Nor is it possible for Plaintiff to have

grieved this claim before he submitted his Complaint in this
action.

See 42 U.S.C. § 1997e.
Plaintiff’s two other requests for care were submitted

to prison authorities after he signed and sent the original
pleading to this court for filing.
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See Compl., ECF #1 (signed

September 22, 2012); ECF #1-1 (mailing documentation showing the
pleading was received by prison officials on September 23, 2012,
and mailed the same date).

“[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.”
Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007).

The

proposed amended complaint does not support a finding of imminent
danger of serious injury.

Nor does it support Plaintiff’s claims

that he has been denied medical or dental care.

Rather, it shows

that Plaintiff was treated for a cancerous tumor on September 11,
2012, and his other medical and dental requests have been
promptly addressed.
As Plaintiff was informed, he may raise his claims in
Arizona by filing a new action.

Plaintiff, however, fails to

provide an intervening change in controlling law, competent new
evidence that was unavailable to the court, or a sufficient
argument showing the need to correct clear error or prevent
manifest injustice relating to this court’s October 2, 2012,
Dismissal Order.

His proposed amended complaint has no effect,

not having been allowed by this court.

Plaintiff’s Motion Under

Rule 60(b), ECF #10, is DENIED.
B.

Plaintiff’s Remaining Motions
Having denied Plaintiff’s motion for reconsideration,

the court denies as moot Plaintiff’s remaining motions for in

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forma pauperis status, a hearing on his claims, transfer to
Hawaii, and appointment of counsel.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 24, 2012.

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

In re: Michael C. Tierney, 1:12-cv-00532 SOM/KSC; ORDER DENYING MOTION FOR
RECONSIDERATION AND ALL PENDING MOTIONS; G:\docs\prose attys\Recon\DMP\2012\Tierney
12-532 som (R60, M. amd, 2 IFP, appt. couns., hrg).wpd

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