Tierney v. Judd et al

Filing 4

ORDER DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(g). Signed by JUDGE HELEN GILLMOR on 4/17/2013. ~ 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. (ecs, )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.
)
)
RANGER J. JUDD, RANGER NEAL
)
AKANA,
)
)
Defendant.
)
______________________________ )

CIV. NO.

13-00174 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 prisoner civil rights complaint and in forma pauperis
application.

ECF Nos. 1 and 2.

Plaintiff is incarcerated at the

Halawa Correctional Facility.
Plaintiff alleges that National Park Service Rangers J.
Judd and Neal Akana violated his constitutional rights during his
arrest in 1999 in Hawai`i Volcanoes National Park.
States v. Tierney, Cr. No. 99-00527 HG.

See United

For the following

reasons, 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,
claim upon
unless the
of serious

malicious, or fails to state a
which relief may be granted,
prisoner is under imminent danger
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 Plaintiff’s 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 § 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

1

The Ninth Circuit Court of Appeals and this court have
explicitly notified Plaintiff of his strikes numerous times.
2

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
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, despite his
statement that he “lives in fear” of Defendants Judd and Akana.
III.

CONCLUSION

Plaintiff’s in forma pauperis application is DENIED and

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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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, April 17, 2013.

/S/ Helen Gillmor
Helen Gillmor
United States District Judge

Tierney v. Judd, Civ. No. 13-00174 HG-RLP; G:\docs\kelly\Orders\Denise\13cv174.Tierney
v. Judd..Dismissing Action.wpd

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