Tierney v. Hawaii

Filing 5

ORDER DENYING MOTION FOR RELEASE AND DISMISSING ACTION re: 1 . ~ "Tierney's Complaint and action are DISMISSED without prejudice so that he may assert his request for release pending certiorari to the United States Supreme Co urt. Any pending motions are terminated. The Clerk of Court shall close the case." ~ Signed by JUDGE LESLIE E. KOBAYASHI on 3/21/2013. [Motion terminated: 2 Motion to Appoint Counsel] (afc) 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). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

MICHAEL C. TIERNEY,
Plaintiff,
vs.
HAWAII,
Defendant.
____________________________

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NO. 1:13-cv-00132 LEK/KSC
ORDER DENYING MOTION FOR
RELEASE AND DISMISSING ACTION

ORDER DENYING MOTION FOR RELEASE
AND DISMISSING ACTION
Before the court is pro se Plaintiff Michael C.
Tierney’s civil action.

It is unclear whether Tierney intends

this action as a prisoner civil rights complaint, is seeking some
form of habeas relief, or a writ of mandamus.

Tierney is

incarcerated at the Halawa Correctional Facility (“HCF”).

He

complains that Defendant State of Hawaii is violating the Eighth
and Fourteenth Amendments by refusing to release him on bail
pending disposition of his petition for writ of certiorari to the
United States Supreme Court.
and unusual punishment.

Tierney asserts that this is cruel

Apparently, Tierney’s motions for post-

conviction relief seeking release in the state court have been
denied and Tierney is seeking review by the United States Supreme

Court.1

Tierney has not submitted payment or an in forma

pauperis application to commence this action.

Tierney’s motion

for release on bail is DENIED and this action is DISMISSED
pursuant to 28 U.S.C. § 1915(e) and (g).
I.

28 U.S.C. § 1915(g)

To the extent Tierney intends this action as brought
pursuant to 42 U.S.C. § 1983, it is DISMISSED.

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

1

Tierney notified the court in another action that he was
granted parole on February 6, 2013. See Tierney v. Torikawa,
1:12-cv-00056 LEK, ECF No. 74 PageID #329 (“[A]so on February 6,
2013, plaintiff was granted parole, but as of 2/9/13 he is still
in prions at HCF.”).
2

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 Tierney’s prior cases qualify as
“strikes” under § 1915(g):
(1) Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir. 1997)
(finding that Tierney had three strikes under 28 U.S.C.
§ 1915(g));
(2)

Tierney v. Clinton, 1996 WL 310171 (D.C. Cir. May
28, 1996), aff’g Tierney v. Clinton, Civ. No.
1:95-01268 UNA (dismissing action as frivolous);
and

(3)

Tierney v. United States, Civ. No. 11-00082 HG (D.
Haw. Feb. 7, 2011) (dismissing as frivolous and
finding Plaintiff had accrued three strikes).2

See PACER Case Locator http://pacer.psc.uscourts.gov (last
visited March 20, 2013).

Tierney may not bring a civil rights

action without prepayment of the $350.00 filing fee unless he is
in imminent danger of serious physical injury.

28 U.S.C.

§ 1915(g).
A.

No Imminent Danger
“[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).

2

Andrews v.

“[T]he exception

The Ninth Circuit Court of Appeals and this court have
notified Tierney regarding his strikes numerous times. See,
e.g., Kupers, 128 F.3d at 1311; Tierney v. United States, Civ.
No. 10-00675-HG (D. Haw. Dec. 1, 2010) (dismissing as frivolous
and finding Tierney had accrued three strikes).
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 “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).
Nothing within the Tierney’s documents suggests that he
in imminent danger of serious physical injury due to the State of
Hawaii’s refusal to release him pending his petition for
certiorari to the United States Supreme Court.

Tierney may not

proceed without prepayment of the civil filing fee.
II.

MOTION FOR RELEASE ON BAIL

To the extent Tierney intended his document as a
petition for mandamus, or as some other form of relief, his
request is also denied and this action dismissed for failure to
state a claim.

Tierney seeks release pursuant to the Bail Reform

Act, 18 U.S.C. § 3143(b)(1)(B), pending the Supreme Court’s
disposition of his petition for certiorari.3

See Compl., ECF No.

1 PageID #1.

3

To clarify, Tierney does not seek release pending
resolution of any federal habeas petition. This court denied
Tierney’s federal habeas petition in 2012, and the Ninth Circuit
affirmed that decision, denied a certificate of appealability,
and denied his request to file a second or successive petition
raising these issues. See Tierney v. Abercrombie, 1:11-cv-00246
LEK, ECF Nos. 99, 100, 144-146. Tierney has not petitioned for
certiorari of these decision.
4

Tierney is not a federal prisoner and the Bail Reform
Act’s provisions do not apply to him or to challenges to his
state sentence.

“The release on bail of state prisoners seeking

[release] in federal court is . . . governed by Fed. R. App. P.
23, and not by the provisions of the Bail Reform Act, 18 U.S.C.
§ 3142[.]”

Marino v. Vasquez, 812 F.2d 499, 507 (9th Cir. 1987)

(citing cases from the First, Second, Third and Fifth circuits
holding the same).

“The federal court’s authority to release a

state prisoner on recognizance or surety in the course of a
habeas corpus proceeding derives from the power to issue the writ
itself.”

Id. at 508.

As this court has denied Tierney habeas

relief, and this decision has been upheld by the federal
appellate court, this court lacks jurisdiction to grant his
request for release under the federal habeas statutes.
This court also lacks jurisdiction to grant his request
as it relates to his state proceedings that are now on review
with the Supreme Court.

Rule 23(b) states:

(b) Detention or Release Pending Review of Decision Not
to Release. While a decision not to release a prisoner
is under review, the court or judge rendering the
decision, or the court of appeals, or the Supreme
Court, or a judge or justice of either court, may order
that the prisoner be:
(1) detained in the custody from which release is
sought;
(2) detained in other appropriate custody; or
(3) released on personal recognizance, with or without
surety.

5

Fed. R. App. P. 23(b) (emphasis added).4

Tierney’s request for

review of the state court’s decision denying him release is
pending before the United States Supreme Court.

The language of

Rule 23(b) clearly states that only the United States Supreme
Court or the Hawaii supreme court have jurisdiction to consider
Tierney’s request for release on bail.
Rule 23(d) also supports deferral of this request to
the United States Supreme Court.

It states:

An initial order governing the prisoner's custody or
release, including any recognizance or surety,
continues in effect pending review unless for special
reasons shown to the court of appeals or the Supreme
Court, or to a judge or justice of either court, the
order is modified or an independent order regarding
custody, release, or surety is issued.
Fed. R. App. P. 23(d) (emphasis added).

That is, any initial

order from the Hawaii state courts denying Tierney release
continues in effect, unless Tierney can show the Supreme Court
“special reasons” supporting modification of such order.
According to the plain language of Rule 23(d), only the Supreme
Court has the authority to rule upon Tierney’s request.
Tierney’s request for relief from this court fails to state a
cognizable claim.
III.

CONCLUSION

Tierney’s Complaint and action are DISMISSED without
prejudice so that he may assert his request for release pending

4

The Supreme Court counterpart to this rule is Sup. Ct.
Rule 36(3)(a) and 36(4).
6

certiorari to the United States Supreme Court.
motions are terminated.

Any

pending

The Clerk of Court shall close the case.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 21, 2013.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

Tierney v. Abercrombie, et al., 1:11-cv-00246 LEK/RLP; Order Denying Motion for
Release and Dismissing Action; G:\docs\prose attys\3 Strikes Ords &
OSCs\DMP\2013\Tierney 13-132

lek (demanding release).wpd

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