Grandinetti v. Public Safety et al

Filing 4

DISMISSAL ORDER - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 12/7/12. " The Complaint and action are DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(g). He 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." (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 P. Grandinetti served by first class mail at the address of record on December 7, 2012.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FRANCIS P. GRANDINETTI,
#A0185087,
Plaintiff,
vs.
PUBLIC SAFETY, et al.,
Defendants.
_____________________________

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NO. 1:12-cv-00650 SOM/BMK
DISMISSAL ORDER

ORDER DISMISSING COMPLAINT AND ACTION
Before the court is pro se plaintiff Francis P.
Grandinetti’s prisoner civil rights action.

Grandinetti is a

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

Grandinetti complains of his transfer

from Hawaii in 1992, to various prisons on the Mainland.
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.
At least three of Grandinetti’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

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

1

The court has notified Grandinetti of his strikes numerous
times. See e.g., Grandinetti v. Champion Air, 1:12-cv-00528 SOM;
Grandinetti v. Inverness Med. Co., 1:12-cv-00489 HG, Grandinetti
v. U.S. Attorney Gen., 1:12-cv-00430 HG. Grandinetti did not
appeal the three-strikes determinations in these cases.
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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).
Grandinetti’s claims challenge his allegedly illegal
“extradition” from Hawaii to the Mainland, beginning in 1995.
Although Grandinetti refers to “Serious Physical Injuries,” and
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alleges that physical injuries occurred during his transfers to
various Mainland prisons, he provides no details regarding this
statement.

His claims do not support a finding that Grandinetti

was in imminent danger of serious physical injury as of the date
he filed this action.

He may not proceed without prepayment of

the civil filing fee.
The Complaint and action are DISMISSED without
prejudice pursuant to 28 U.S.C. § 1915(g).

He 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, December 7, 2012.

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

Grandinetti v. Public Safety, et al., 1:12-cv-00650 SOM/BMK; Dismissal Order;
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