Grandinetti v. Abercrombie et al
DISMISSAL ORDER. Signed by JUDGE DERRICK K. WATSON on 1/15/2015. ~ 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 fil ing fee. He must seek certification from the Ninth Circuit Court of Appeals before proceeding in this court with his habeas claims. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic n otifications 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
ABERCROMBIE, et al.,
CIV. NO. 15-00006 DKW/RLP
Before the court is Francis Grandinetti’s pleading, labeled “Federal
Habeas Corpus Petition, with PLRA 28 U.S.C. § 1915(g) Claims, Class-Action
Case, Rule 23, 28 U.S.C. § 1407 M.D.L.” Pet., Doc. No. 1. The jurisdictional
basis for this pleading is therefore unclear. Grandinetti has not submitted the civil
filing fee (for either a habeas action or a civil rights action), or an in forma
pauperis (“IFP”) application. Grandinetti’s pleading and this action are
DISMISSED without prejudice.
I. 28 U.S.C. § 2254
Rule 4 of the Rules Governing § 2254 Cases in the United States
District Courts (“Habeas Rules”) requires the court to make a preliminary review
of each petition for writ of habeas corpus. The court must summarily dismiss a
petition “[i]f it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court.” Habeas Rule 4; O’Bremski
v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908
F.2d 490 (9th Cir. 1990).
To the extent Grandinetti asserts habeas claims alleging that he has
been illegally “exiled” due to his incarceration and subsequent transfer to the
Mainland in or about 1995, his Petition is DISMISSED. Grandinetti
unsuccessfully challenged his 1993 arrest and 1994 conviction and sentence in
Grandinetti v. State of Hawaii, Civ. No. 05-00254 DAE, making these claims
second or successive. Id. (dismissing habeas petition with prejudice as timebarred). Because only an appellate court can authorize this court to consider a
second or successive petition for writ of habeas corpus, this court lacks jurisdiction
to consider Grandinetti’s habeas claims. See Burton v. Stewart, 549 U.S. 147, 152
(2007); see also, 28 U.S.C. § 2254(b)(3)(A).
II. 42 U.S.C. § 1983
To the extent Grandinetti asserts a cause of action under 42 U.S.C.
§ 1983, challenging his transfer, or “exile,” to the Mainland, that claim also fails.
First, it appears that Grandinetti labeled this pleading as seeking habeas relief in
part to avoid the penalties imposed on his filings by § 1915(g). See Andrews v.
King, 398 F.3d 1113, 1122-23, n.12 (9th Cir. 2005) (recognizing that some habeas
petitions are civil rights actions mislabeled as habeas petitions to avoid § 1915(g)’s
penalties). Grandinetti has accrued three strikes pursuant to 28 U.S.C. § 1915(g).1
He may not bring a civil action without complete prepayment of the filing fee,
unless he plausibly alleges that he was in imminent danger of serious physical
injury at the time he filed his pleading. See id.; Andrews v. Cervantes, 493 F.3d
1047, 1053 (9th Cir. 2007). Although Grandinetti claims that he has been
handcuffed 10,000 times, and subjected to “poison-gas, mace, riots, toilet bombs,
MH-AD Seg, or Mental-Ward custody,” since his transfer to the Mainland in
prisons in Arizona, Oklahoma, Mississippi, Tennessee, Texas, and Minnesota,
these statements are too broad and generic to plausibly allege that Grandinetti was
in imminent danger of serious physical injury due to his transfer to the Mainland
when he commenced this action.
Grandinetti has accrued three strikes under 28 U.S.C. § 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.
Second, Grandinetti’s claim regarding his exile to the Mainland fails
to state a claim under § 1983. It is black letter law that a prisoner has no
constitutional right to incarceration in a particular institution, housing unit, or state.
Meachum v. Fano, 427 U.S. 215, 224-28 (1976). Moreover, an interstate prison
transfer does not deprive an inmate of any liberty interest protected by the Due
Process Clause. Olim v. Wakinekona, 461 U.S. 238, 248 (1983); see also Rizzo v.
Dawson, 778 F.2d 527, 530 (9th Cir. 1985) (“An inmate’s liberty interests are
sufficiently extinguished by his conviction so that the state may change his place of
confinement even though the degree of confinement may be different and prison
life may be more disagreeable in one institution than in another.”).
To the extent Grandinetti claims his transfer to the Mainland
constituted “cruel and unusual punishment,” or violated his right to equal
protection, he also fails to state a claim. He provides no facts showing that any
named Defendant acted with deliberate indifference to his health or safety or
treated him differently than other similarly situated inmates by transferring him to
the Mainland in 1995. See Lopez v. Smith, 203 F.3d 1122, 1132-33 (9th Cir. 2000)
(setting forth legal standard for Eighth Amendment claim that prison official has
deprived inmate of humane conditions of confinement); Rizzo, 778 F.2d at 530
(“Plaintiff’s assertion that his transfer would violate his . . . equal protection rights
has no basis in law.”).
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. He must seek certification from the Ninth Circuit Court
of Appeals before proceeding in this court with his habeas claims.
IT IS SO ORDERED.
DATED: January 15, 2015, at Honolulu, Hawai’i.
--------------------------------------------------------------------------------------------------Francis Grandinetti v.Governor Abercrombie, et al.;
Civil No. 15-00006 DKW/RLP; DISMISSAL ORDER
Grandinetti v. Abercrombie, 1:13-00006 DKW/RLP; PSA Habeas 2015; J:\PSA Draft Ords\DKW\Grandinetti 15-06
dkw (2d or scsv or 1915(g) if civ. rts).wpd
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