Grandinetti v. United States of America et al

Filing 4

DISMISSAL ORDER PURSUANT TO 28 U.S.C. § 1915(g) re: 1 . Signed by JUDGE LESLIE E. KOBAYASHI on 10/17/2013. Excerpt of Order: ~ "[T]he Clerk of Court is DIRECTED to identify this action on the docket as a prisoner civil rights action." "Grandinetti's pleading and this action are DISMISSED without prejudice. He may refile his civil rights claims in a new action with concurrent payment of the filing fee." ~ (afc) < FONT SIZE=1>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 Grandinette will be served by first class mail on October 21, 2013.

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

)
)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA, et )
al.,
)
)
Respondents.
)
_____________________________ )

CIV. NO. 13-00534 LEK/BMK
DISMISSAL ORDER PURSUANT TO
28 U.S.C. § 1915(g)

DISMISSAL ORDER PURSUANT TO 28 U.S.C. § 1915(g)
Before the court is another of Francis Grandinetti’s
generic pleadings labeled “Federal Complaint, Habeas Corpus
Claims.”

ECF No. 1.

Grandinetti refers to “28 U.S.C. § 1915(g)

and 18 U.S.C. § 3006A IFP laws,” and “28 U.S.C. § 1407 M.D.L,”
alleging that this is a multi-district action relating to
“‘prison overcrowding/corruption’ law, from the 1980’s to 2000.”
Compl., ECF No. 1.

Grandinetti again complains that he has been

unlawfully transferred to and between several Mainland prisons.
See, e.g., Civ. Nos. 13-00514 SOM; 13-00164 SOM; 13-00103 JMS;
13-00039 LEK; 13-00010 SOM; 13-00005 SOM; 12-00666 JMS.
Although Grandinetti’s pleading is labeled “Federal
Habeas Corpus Petition,” it appears he labels the pleading as
such to avoid the penalties imposed on his filings by 28 U.S.C.
§ 1915(g).1
1

See Andrews v. King, 398 F.3d 1113, 1122-23, n.12

Grandinetti has accrued three strikes under 28 U.S.C.
(continued...)

(9th Cir. 2005)(recognizing that some habeas petitions are civil
rights actions mislabeled as habeas petitions to avoid
§ 1915(g)’s penalties).

Grandinetti neither pays the civil

filing fee (for either a habeas action or a civil rights action),
nor submits an in forma pauperis application.
Due to the nature of Grandinetti’s claims and the
court’s past history with his filings, the Clerk of Court is
DIRECTED to identify this action on the docket as a prisoner
civil rights action.

For the following reasons, Grandinetti’s

pleading and this action are DISMISSED without prejudice.
I. DISCUSSION
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

1

(...continued)
§ 1915(g), and has been notified of these strikes numerous times.
See, e.g., Grandinetti v. FDC Seg. Unit Staff, 420 Fed. Appx. 576
(9th Cir. 2011); Grandinetti v. Shimoda, Civ. No. 05–00442 JMS;
Grandinetti v. Stampfle, Civ. No. 05–00692 HG.
2

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.”
Andrews, 398 F.3d at 1121.

“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.

Because Grandinetti has accrued three strikes pursuant
to 28 U.S.C. § 1915(g), he may not proceed without prepayment of
the civil filing fee unless he plausibly alleges that he is in
imminent danger of serious physical injury.

Grandinetti says

that the state “venue-shopped” when they decided transferred him
to various Mainland prisons.

He alleges that he is allergic to

cigarette smoke, but concedes that cigarettes have been banned in
all Department of Public Safety facilities and at SCC since at
least 2008.

He worries, however, that this ban will be

rescinded.

These statements do not plausibly allege that

Grandinetti is in imminent danger of serious physical injury due
to his transfers or confinement at SCC.

Nothing else within the

complaint suggests that he was in imminent danger of serious
physical injury when he filed this action.
Moreover, Grandinetti’s claims regarding his numerous
prison transfers fail to state a claim under § 1983.

A prisoner

has no constitutional right to incarceration in a particular

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institution.

See Olim v. Wakinekona, 461 U.S. 238, 244–48

(1983); Meachum v. Fano, 427 U.S. 215, 224 (1976).
Grandinetti’s pleading and this action are DISMISSED
without prejudice.

He may refile his civil rights claims in a

new action with concurrent payment of the filing fee.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 17, 2013.

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

Grandinetti v. United States, 1:13-cv-00534 LEK/BMK; G:\docs\prose attys\3
Stks\DMP\2013\Grandinetti 13-534 lek (dsm no imm dng ftsc (labeled hab)).wpd

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