Villanueva v. Hoffman et al

Filing 3

DISMISSAL ORDER PURSUANT TO 28 U.S.C. § 1915(g). Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 10/16/2014. Excerpt of Order: "Villanueva's in forma pauperis application is DENIED. The Compl aint and action are DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(g). Villanueva may move within twenty-eight days to reopen this action with concurrent payment of the $400.00 filing fee, or he may reassert his claims in a new ac tion with concurrent payment of the $400.00 filing fee. Any pending motions are DISMISSED. The Clerk shall close the case and note this dismissal is pursuant to 28 U.S.C. § 1915(g)." MOTION terminated: 2 MOTION for Leave to Proceed in forma pauperis filed by Gerald Villanueva. (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 will be served by first class mail on October 17, 2014.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GERALD VILLANUEVA, #A4005447

)
)
Plaintiff,
)
)
vs.
)
)
MICHAEL S. HOFFMAN, NOLAN
)
ESPINDA, NOLAN UEHARA, MONTE )
McCOMBER,
)
)
Defendants.
)
_____________________________ )

CIV. NO. 14-00461 SOM/KSC
DISMISSAL ORDER PURSUANT TO
28 U.S.C. § 1915(g)

DISMISSAL ORDER PURSUANT TO 28 U.S.C. § 1915(g)
Before the court is pro se plaintiff Gerald
Villanueva’s prisoner civil rights complaint and application to
proceed in forma pauperis.

Doc. Nos. 1 and 2.

Villanueva

alleges prison officials at the Halawa Correctional Facility
violated his right to due process when they allegedly forged his
signature on a confirmatory urinalysis test in which he had
tested positive for amphetamines in December 2013, found him
guilty at an adjustment committee hearing on April 11, 2014, and
later transferred him to Arizona.

See Compl., Doc. No. 1.

Villanueva seeks in forma pauperis (“IFP”) status for this
action.
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.
The court takes judicial notice that Villanueva has had
at least three cases dismissed while he was incarcerated that
qualify as “strikes” under 28 U.S.C. § 1915(g).

See Bias v.

Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007).

These include:

(1)

Villanueva v. United States, Civ. No. 0600148 SOM-KSC (D. Haw. April 4, 2006)
(dismissed with prejudice as frivolous and
for failure to state a claim) (no appeal);

(2)

Villanueva v. Hawaii, Civ. No. 05-00756 HGKSC (D. Haw. Dec. 8, 2005) (dismissed as
frivolous and for failure to state a claim)
(no appeal); and

2

(3)

Villanueva v. Bennett, Civ. No. 05-721 HG-BMK
(D. Haw. Dec. 8, 2005) (dismissed for failure
to state a claim) (appeal dismissed).1

See PACER Case Locator, http://pacer.psc.uscourts.gov.
Villanueva may not bring a civil action without complete
prepayment of the entire 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.

Nothing within the Complaint suggests that Villanueva
was in imminent danger of serious physical injury when he filed
this action.

The urinalysis was done in December 2013 and the

adjustment committee hearing was in April 2014.

Although

Villanueva alleges he is suffering mental and emotional anguish
and that he suffered pain during his transfer to Arizona due to
tight leg irons, neither of these claims supports a finding that

1

The court notified Villanueva that the dismissal of these
actions may later be counted as strikes. See e.g., Villanueva v.
Hawaii, Civ. No. 05-00756 HG, Doc. No. 3; Villanueva v. Bennett,
Civ. No. 05-00721 HG, Doc. No. 8.
3

he was in imminent danger of serious physical injury when he
filed this action claiming due process violations that allegedly
occurred more than six months ago.

Having not indicated that he

is in imminent danger of serious physical injury, he may not
proceed without prepayment of the civil filing fee.
Villanueva’s in forma pauperis application is DENIED.
The Complaint and action are DISMISSED without prejudice pursuant
to 28 U.S.C. § 1915(g).

Villanueva may move within twenty-eight

days to reopen this action with concurrent payment of the $400.00
filing fee, or he may reassert his claims in a new action with
concurrent payment of the $400.00 filing fee.
motions are DISMISSED.

Any pending

The Clerk shall close the case and note

this dismissal is pursuant to 28 U.S.C. § 1915(g).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 16, 2014.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Villanueva v. Hoffman, Civ. No. 14-00461 SOM/KSC; 3 stks/2014/Villanueva 14-461;
J:\PSA Draft Ords\SOM\Villanueva 14-461 som (4 strks).wpd

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