Tia v. Kobayashi et al

Filing 4

ORDER DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING COMPLAINT AND ACTION PURSUANT TO 28 U.S.C. § 1915(g)re 3 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 11/26/12. "Plaintiff's in forma pauperis application is DENIED and his Complaint and action are DISMISSED without prejudice. If Plaintiff wishes to reassert these claims, he may do so by concurrently submitting the entire $350.00 filing fee when he files the action. Any pending motions are term inated. The Clerk of Court shall close the case." (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). Peter R. Tia served by first class mail at the address of record on November 26, 2012.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
PETER R. TIA, #A1013142,

)
)
Plaintiff,
)
)
vs.
)
)
JUDGE LESLIE E. KOBAYASHI, et
)
al.,
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)
Defendants.
)
______________________________ )

NO. 1:12-cv-00625 SOM/BMK
ORDER DENYING IN FORMA
PAUPERIS APPLICATION AND
DISMISSING COMPLAINT AND
ACTION PURSUANT TO 28 U.S.C.
§ 1915(g)

ORDER DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING
COMPLAINT AND ACTION PURSUANT TO 28 U.S.C. § 1915(g)
Before the court is pro se Plaintiff Peter R. Tia’s
prisoner civil rights Complaint and in forma pauperis (“IFP”)
application.1

Plaintiff complains that Defendants are conspiring

to keep him incarcerated and denying him due process.
Plaintiff’s in forma pauperis application is DENIED and this
action is DISMISSED without prejudice.
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.

1

Plaintiff’s in forma pauperis application is incomplete
and would be denied regardless of his three strikes status under
28 U.S.C. § 1915(g).

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.
At least three of Plaintiff’s prior cases qualify as
“strikes” under § 1915(g):
(1)

Tia v. Fujita, Civ. No. 08-00575 HG (D. Haw. Jan. 27,
2009) (dismissed for failure to state a claim);

(2)

Tia v. Criminal Investigation Demanded, Civ. No. 1000383 SOM (D. Haw. Aug. 5, 2010) (dismissed as
frivolous and for failure to state a claim); and

(3)

Tia v. Criminal Investigation, Civ. No. 10-00441 DAE
(D. Haw. July 30, 2010) (dismissed as frivolous and for
failure to state a claim).2

2

This court has notified Plaintiff numerous times about
these and his many other strikes. See, e.g., Tia v. Borges,
1:12-cv-00158 HG and App. No. 12-16158 (9th Cir. Aug. 9, 2012),
ECF #26 (“[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, 1:11-cv-00098 HG, ECF #20; Tia v. Doe
Defendants as Aggrieved, 1:11-cv-00352 SOM, ECF #13; Tia v.
Mollway, 1:11-00421 JMS, ECF #8.
2

See http://pacer.psc.uscourts.gov. (PACER Case Locator).
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

To decide whether a plaintiff

alleges imminent danger of serious physical injury, the court
must examine conditions at the time the suit was filed:
The PLRA provides that a prisoner with three strikes
cannot use IFP status to “bring a civil action . . .
unless the prisoner is under imminent danger of serious
physical injury.” 28 U.S.C. § 1915(g) (emphases
added). The exception’s use of the present tense,
combined with its concern only with the initial act of
“bring[ing]” the lawsuit, indicates to us that the
exception applies if the danger existed at the time the
prisoner filed the complaint. In other words, the
availability of the exception turns on the conditions a
prisoner faced at the time the complaint was filed, not
at some earlier or later time.
Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 2007)
(internal citation omitted).

But alleging a plausible, ongoing

danger will also satisfy this requirement.

Id. at 1056 (finding,

by example, that “a prisoner who alleges that prison officials

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continue with a practice that has injured him or others similarly
situated in the past” satisfies the ongoing danger standard).
Plaintiff broadly alleges that Defendants are
conspiring against him to keep him illegally incarcerated.

In

support, he says that the Hawaii Paroling Authority denied his
parole, several of his federal actions have been dismissed, the
police refuse to provide him the help he desires, he has been
denied copies of documents, Defendants have introduced incorrect
and fraudulent testimony regarding his body mass index in 1:11cv-00459 LEK, and the prison’s kitchen supervisor has denied him
desserts since October 29, 2012.

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).
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III.

CONCLUSION

Plaintiff’s in forma pauperis application is DENIED and
his Complaint and action are DISMISSED without prejudice.

If

Plaintiff wishes to reassert these claims, he may do so by
concurrently submitting the entire $350.00 filing fee when he
files the action.

Any pending motions are terminated.

The Clerk

of Court shall close the case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 26, 2012.

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

Tia v. Kobayashi, et al., 1:12-cv-00625 SOM/BMK; Order Denying in Forma Pauperis
Application and Dismissing Complaint and Action Pursuant to 28 U.S.C. § 1915(g);
G:\docs\prose attys\3 Strikes Ords & OSCs\DMP\2012\Tia 12-625 som (no imm. dng, consp.
to keep him in hcf).wpd

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