Tierney

Filing 5

DISMISSAL ORDER - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 10/1/12. "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. The Clerk of Court shall close this case. All pending motion are DENIED." (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 served by first class mail at the address of record on October 2, 2012.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
IN RE: REGARDING MICHAEL C.
TIERNEY

)
)
)
_____________________________ )

NO. 1:12cv-00532 SOM/KSC
DISMISSAL ORDER

Plaintiff Michael C. Tierney, a Hawaii inmate confined
at the Saguaro Correctional Center (“SCC”), located in Eloy,
Arizona, originally filed this pleading as Motion for Hearing in
Tierney v. Hamada, No. 1:12-cv-00117 SOM.

Because Plaintiff’s

Motion raised claims that are separate and distinct from those he
raised in 1:12-cv-00117, and seek to append new, unrelated claims
against new and unidentified defendants to those in 1:12-cv-00117
SOM, in an apparent attempt to avoid 28 U.S.C. § 1915(g)’s
restrictions preventing the filing of a new action in forma
pauperis, the court directed the Clerk to file Plaintiff’s
pleading as a new, randomly assigned prisoner civil rights
action.

ECF #1.

Plaintiff chiefly protests his recent transfer

from Hawaii to Arizona and seeks a hearing on this allegedly
illegal “extradition.”
I.

Id. at PageID #1.

“THREE STRIKES PROVISION” OF 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 has filed numerous civil actions and appeals
in the federal courts since 1995.
http://pacer.psc.uscourts.gov.

See PACER Case Locator,

At least three of Plaintiff’s

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

Tierney v. United States, 1:11-cv-00082 HG
(D. Haw. Feb. 7, 2011) (dismissing as
frivolous and finding Plaintiff had accrued
three strikes);

(2)

Tierney v. United States, 1:10-cv-00675 HG
(D. Haw. Dec. 1, 2010) (dismissing as
frivolous and finding Plaintiff had accrued
three strikes); and

(3)

Tierney v. United States, 1:10-cv-00166 HG
(D. Haw. Apr. 9, 2010) (dismissing as

2

frivolous and finding the dismissal counted
as a strike).1
Therefore, 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.
A.

28 U.S.C. § 1915(g).

ANALYSIS

Imminent Danger Exception
A plaintiff who has three or more strikes may not bring

a civil action without complete prepayment of the $350.00 filing
fee unless he or she is in imminent danger of serious physical
injury.

28 U.S.C. § 1915(g).

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).
1

Andrews v.

“[T]he exception

This court and the Ninth Circuit Court of Appeals have
notified Plaintiff about his many strikes numerous times. See,
e.g., Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997)
(finding that Plaintiff has three strikes under 28 U.S.C.
§ 1915(g)); Tierney v. Matsuoka, No. 1:12-cv-00286 DAE (D. Haw.
June 28, 2012) (dismissed after notice pursuant to
§ 1915(g)); Tierney v. Fasi, No. 1:12-cv-00148 JMS (D. Haw. Apr.
19, 2012) (dismissed after notice pursuant to § 1915(g)).
3

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).
B.

Plaintiff’s Allegations of Imminent Danger
Plaintiff alleges that his transfer from Hawaii to

Arizona in June 2012 violated due process, because he cannot be
paroled from Arizona and has many civil cases pending in Hawaii.
Plaintiff also broadly alleges that he is being denied dental and
medical care since his transfer.

Plaintiff does not clearly

identify who is responsible for the alleged violations, although
he names Dr. Francis Hamada, a dentist employed at the Oahu
Community Correctional Center (“OCCC”), and other unidentified
OCCC defendants in his caption.

These allegations do not support

a finding that Plaintiff is in imminent danger of serious
physical injury from any action or inaction by Dr. Hamada or OCCC
prison officials.
First, to the extent Plaintiff protests his June 2012
transfer to Arizona, he fails to state a claim.2
2

Plaintiff has

Plaintiff recently submitted another complaint making
identical claims, and in that connection the court carefully
(continued...)
4

no liberty interest in remaining at a particular prison or in
being free from transfer out of Hawaii.

See, e.g., Olim v.

Wakinekona, 461 U.S. 238, 244-48 (1983) (interstate prison
transfer does not implicate Due Process Clause).

Nor does he

have a right to be physically present at Hawaii civil court
hearings.

Cf., 42 U.S.C. § 1997e(f) (providing that federal

prisoner actions be “conducted by telephone, video conference, or
other telecommunications technology without removing the prisoner
from the facility in which the prisoner is confined”).

It is

also unlikely that Dr. Hamada or any OCCC prison official is
responsible for Plaintiff’s out-of-state transfer, and Plaintiff
provides no facts supporting this conclusion.
Second, to the extent Plaintiff complains of the denial
of dental or medical care in Arizona, he names no individual
responsible for this alleged denial and provides no facts in
support of such a claim.

He does not, therefore, “plausibly

allege” imminent danger of serious physical injury.
venue for these types of claims lies in Arizona.
§ 1391.

Moreover,

See 28 U.S.C.

Plaintiff is well acquainted with the federal courts and

has shown that he is capable of filing an action naming proper
defendants in the proper court with sufficient supporting facts,

2

(...continued)
explained that these types of claims are not cognizable and do
not satisfy the imminent danger exception to § 1915(g). See
Tierney v. Abercrombie, No. 1:12-cv-00389 JMS, Order Dismissing
Complaint and Action, ECF #6.
5

when it suits his purposes.

He has already filed one suit in the

District of Arizona alleging the denial of adequate dental care,
see 2:12-cv-01554-FJM (D. Ariz.), and several cases alleging the
same in this court.

See e.g., 1:12-cv-00308 SOM (D. Haw.); 1:11-

cv-00117 SOM; 1:11-cv-00369 JMS (D. Haw.) 1:11-cv-00800 DAE (D.
Haw.).

Plaintiff does not plausibly allege facts suggesting

imminent danger of serious physical injury, and if he were
allowed to amend to present sufficient facts, venue for those
claims would lie in Arizona, not Hawaii.
Plaintiff may not, therefore, proceed in this action
without prepayment of the civil filing fee, 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 submitting the entire
$350.00 filing fee when he files the action.
The Clerk of Court shall close this case.

All pending

motion are DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 1, 2012.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
In re: Tierney, No. 1:12-cv-00532 SOM/KSC; Dismissal Order; G:\docs\prose
attys\3 Strikes Ords & OSCs\DMP\2012\Tierney 12-532 som (1915(g) no imm.
dng).wpd

6