Tia v. Victory Ohana Does et al

Filing 4

ORDER DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(g). Signed by JUDGE HELEN GILLMOR on 4/29/2013. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive ele ctronic 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
PETER R. TIA, #A1013142,

)
)
)
Plaintiff,
)
)
vs.
)
VICTORY OHANA DOES, LYLE
)
)
ANTONIO, FLOORBOY DOE, WARDEN
NOLAN ESPINDA, ERIC TANAKA,
)
)
GENE POMEROY, DOVIE BORGES,
)
WES MUN, SGT KAISER, MICHAEL
)
GRIBBIN, RAY FONOTI, TED
)
SAKAI, CITY AND COUNTY OF
)
HONOLULU, DEPARTMENT OF THE
)
ATTORNEY GENERAL,
)
)
Defendants.
______________________________ )

CIVIL NO. 13-00187 HG/RLP
ORDER DENYING IN FORMA
PAUPERIS APPLICATION AND
DISMISSING ACTION PURSUANT TO
28 U.S.C. § 1915(g)

ORDER DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING ACTION
PURSUANT TO 28 U.S.C. § 1915(g)
Before the court is pro se Plaintiff Peter R. Tia’s
prisoner civil rights Complaint and in forma pauperis (“IFP”)
application.

Plaintiff complains that Defendants, Hawaii state

officials and private citizens, denied and conspired to deny him
adequate nutrition on April 17, 2013.

Plaintiff’s in forma

pauperis application is DENIED and this action is DISMISSED
without prejudice 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.”

Id.

at 1120.
A court “‘may take notice of proceedings in other
courts, both within and without the federal judicial system, if
those proceedings have a direct relation to matters at issue.’”
Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting
Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir.
2002)).

The court takes judicial notice that Plaintiff has had

three cases dismissed in this court that qualify as “strikes”
under 28 U.S.C. § 1915(g).
(1)

They are:

Tia v. Fujita, Civ. No. 08-00575 HG
(D. Haw. Jan. 27, 2009) (dismissed
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for failure to state a claim);
(2)

Tia v. Criminal Investigation
Demanded, Civ. No. 10-00383 SOM (D.
Haw. Aug. 5, 2010) (dismissed as
frivolous and for failure to state
a claim); and

(3)

Tia v. Criminal Investigation, Civ.
No. 10-00441 DAE (D. Haw. July 30,
2010) (dismissed as frivolous and
for failure to state a claim).1

See PACER Case Locator http://pacer.psc.uscourts.gov (last
visited April 23, 2013).

Plaintiff 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.
28 U.S.C. § 1915(g).
II.

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 court has previously notified Plaintiff of his
strikes. See, e.g., Tia v. Borges, Civ. No. 12-00158 HG, and
App. No. 12-16158 (9th Cir. Aug. 9, 2012), ECF No. 26; Tia v.
Baker, Civ. No. 11-00098 HG, ECF No. 20; Tia v. Doe Defendants as
Aggrieved, Civ. No. 11-00352 SOM, ECF No. 13; and Tia v. Mollway,
Civ. No. 11-00421 JMS, ECF No. 8.
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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).
Plaintiff alleges that, on April 17, 2013, an inmate
served him a dinner tray with a soggy dinner roll, that was
missing dessert.

Plaintiff alleges other inmates received

dessert on this date.

Plaintiff claims the other Defendants

conspired to deny him adequate nutrition.
alleges denial of access to the courts.

Plaintiff further

Plaintiff’s claims do

not suggest that he was in imminent danger of serious physical
injury when he filed this action and he may not proceed without
prepayment of the civil filing fee.

Plaintiff’s claims also fail

to state a claim.
Further, Plaintiff’s in forma pauperis application is
insufficient, because it does not reflect the balance in his
account for the previous six months.

See 28 U.S.C. § 1915(b)(1).

Plaintiff’s account balance reflects that it is current as of
February 28, 2013, almost two months before he filed this action.
III.

CONCLUSION

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.
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The Clerk

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

Honolulu, Hawaii, April 29, 2013.

/S/ Helen Gillmor
Helen Gillmor
United States District Judge

Tia v. Victory Ohana, et al., 1:13-cv-00187 HG/RLP;
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