Grandinetti v. Bobby Ross Group, Inc. (The) et al

Filing 4

DISMISSAL ORDER - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 1/15/13. " 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 concurrent ly 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 Grandinetti, II served by first class mail at the address of record on January 16, 2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FRANCIS GRANDINETTI, II
#A0185087,

)
)
)
Plaintiff,
)
)
vs.
)
)
THE BOBBY ROSS GROUP, et al., )
)
)
Defendants.
_____________________________ )

NO. 1:13-cv-00010 SOM/RLP
DISMISSAL ORDER

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

Grandinetti is a

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

Grandinetti appears to be attempting

to circumvent the bar 28 U.S.C. § 1915(g) imposes on his filings
by labeling this action as “No. 1:96-cv-031.”

In the case

bearing that number, he challenged his 1995 transfer from Hawaii
to various out-of-state prisons operated by the Bobby Ross Group.
See Grandinetti v. Iranon, 1:96-cv-00031 ACK.

That action was

transferred to the Eastern District of Texas on February 5, 1996,
and has been closed for many years.

Grandinetti now asserts

claims never raised in that action.

This court has therefore

opened a new action.

Grandinetti has not submitted an in forma

pauperis application or paid the $350 statutory filing fee for
commencing this action.
//

//
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

(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.
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
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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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).
The court has carefully reviewed the Complaint and its
exhibits.

Nothing within the Complaint or its exhibits suggests

to the court that Grandinetti is in imminent danger of serious
physical injury.

Rather, Grandinetti’s claims are frivolous and

fail to state a claim.

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, January 15, 2013.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Grandinetti v. The Bobby Ross Group, et al., 1:13-cv-00010 SOM/RLP; Dismissal Order;
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