Tierney vs. USA

Filing 4

ORDER DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(g). Signed by JUDGE HELEN GILLMOR on 4/17/2013. ~ Plaintiff's Complaint and action are DISMISSED without prejudice. If Plaintiff wishes to reassert these claims, he may do so by con currently submitting the entire $350.00 filing fee when he files the action. All pending motions are terminated. The Clerk of Court shall close the case. (ecs, )CERTIFICATE OF SERVICEParticipants register ed 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.
)
)
UNITED STATES OF AMERICA,
)
)
)
Defendant.
______________________________ )

CIVIL NO.

13-00171 HG-RLP

ORDER DISMISSING ACTION
PURSUANT TO 28 U.S.C.
§ 1915(g)

ORDER DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(g)
Before the court is pro se Plaintiff Michael C.
Tierney’s “Motion to Return Property Under Rule 41(e) of the
Federal Rules of Criminal Procedure.”

ECF No. 1.

Plaintiff is

incarcerated at the Halawa Correctional Facility and has neither
paid the filing fee to commence this action or submitted an in
forma pauperis (“IFP”) application.
Plaintiff alleges that during his arrest in 1999 in
Hawai`i Volcanoes National Park, National Park Service Rangers
illegally confiscated $5,000.

Plaintiff sought return of this

money during his criminal proceedings in United States v.
Tierney, Cr. No. 99-00527 HG, but was denied because the funds
had been seized by the Hawaii County Police Department, not the
United States.

See ECF No. 9.

Appeals upheld this decision.

The Ninth Circuit Court of
ECF No. 16.

Ten years later, in

Civ. No. 08-00543 HG, Plaintiff again sought return of the money.
See Tierney v. United States, Civ. No. 08-00543 HG.

This action

was dismissed as frivolous.

ECF No. 4. Plaintiff now seeks

return of this money by alleging that he possesses new evidence
to support his claim.

This action is DISMISSED pursuant to 28

U.S.C. § 1915(g).
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.”
at 1120.
At least three of Plaintiff’s cases qualify as

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Id.

“strikes” under § 1915(g):
(1) Tierney v. Kupers, 128 F.3d 1310, 1311
(9th Cir. 1997) (finding that Tierney had
three strikes under § 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. 1100082 HG (D. Haw. Feb. 7, 2011) (dismissing
as frivolous and finding Plaintiff had
accrued three strikes).1
See PACER Case Locator http://pacer.psc.uscourts.gov (last
visited April 11, 2013).

Plaintiff may not bring a civil action

without 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

“[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

1

The Ninth Circuit Court of Appeals and this court have
explicitly notified Plaintiff of 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).
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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 here suggests that Plaintiff was in imminent
danger of serious physical injury due to any action or inaction
of the Defendants when he filed this action.

Moreover, as this

court conclusively decided in Civ. No. 08-00543 HG, Plaintiff’s
claims for the return of money that is not and never was in the
Government’s possession, are frivolous, and are also dismissed
pursuant to 28 U.S.C. § 1915A(a).
III.

CONCLUSION

Plaintiff’s 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.

All pending motions are terminated.

The Clerk of Court shall close the case.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, April 17, 2013.

/S/ Helen Gillmor
Helen Gillmor
United States District Judge

Tierney v. United States, Civ. No. 13-00171 HG-RLP;
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