Grandinetti v. Martinez et al

Filing 4

ORDER DISMISSING ACTION WITHOUT PREJUDICE PURSUANT TO 28 U.S.C. § 1915(g) re 1 , 3 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 3/30/2015. "This action is DISMISSED without prejudice pursuant to 28 U.S.C. § ; 1915(g). Grandinetti may move within twenty-eight days to reopen this action for just cause, or he may reassert his claims in a new action, with concurrent payment of the $400.00 filing fee. Any pending motions are DISMISSED. The March 19 , 2015, Deficiency Order is VACATED. The Clerk shall close this case and note on the docket that this dismissal is without prejudice pursuant to 28 U.S.C. § 1915(g)." (emt, )CERTIFICATE OF SERVICEP articipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Francis A. Grandinetti, II served by first class mail at the address of record on March 30, 2015.

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

)
)
)
Plaintiff,
)
)
)
vs.
)
ACTING SERGEANT F. MARTINEZ, )
et al.,
)
)
)
Defendants.
_____________________________ )

CIV. NO. 15-00081 SOM/KSC
ORDER DISMISSING ACTION
WITHOUT PREJUDICE PURSUANT TO
28 U.S.C. § 1915(g)

ORDER DISMISSING ACTION WITHOUT PREJUDICE
PURSUANT TO 28 U.S.C. § 1915(g)
Before the court is pro se Plaintiff Francis
Grandinetti’s prisoner civil rights complaint and exhibits.
Compl., Doc. No. 1.

Grandinetti is incarcerated at the Saguaro

Correctional Center (“SCC”), located in Eloy, Arizona.
Grandinetti complains that SCC prison officials accused him of
shredding his mattress, possessing a “shank,” and threatening a
guard.
cell.

They then placed him on suicide watch in a “strip-out”
Id.

He seeks a Department of Justice investigation in

Honolulu regarding these claims.
events justify his release.

He also alleges that these

Id. (“This incident of 03/05/2015 is

appropriate for federal habeas corpus in Honolulu.”).
Grandinetti’s action is DISMISSED without prejudice pursuant to
28 U.S.C. § 1915(g).

I. RELIEF SOUGHT
Grandinetti labels this pleading as a “Complaint, TRO
and PI Application,” and states, “Habeas Corpus and Bivens Relief
Sought.”

Compl., Doc. No. 1.

He also refers to “28 U.S.C.

§ 1915(g) PLRA,” in the title, apparently notifying the court he
has three strikes under 28 U.S.C. § 1915(g), and preemptively
challenging a finding that he may not proceed in forma pauperis
(“IFP”).

See id.; see also 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).

Because Grandinetti clearly challenges

the conditions of his confinement, the court construes his
pleading as asserting civil rights claims under 42 U.S.C. § 1983.
II.

28 U.S.C. § 1915(g)

A prisoner may not bring a civil action or appeal a
civil judgment IFP if he 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
2

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

“[D]istrict 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.

Once the district

court has identified three cases that qualify as strikes, the
prisoner has been put on notice as to what the court considered
in denying IFP.

Id.

The prisoner then bears the burden of

persuading the court that the prior dismissals did not qualify as
strikes.

Id.
Grandinetti has accrued three strikes under 28 U.S.C.

§ 1915(g), has been notified of these strikes many times, and has
been informed that he may not proceed IFP unless he is in danger
of serious physical injury.

See, e.g., Grandinetti v. FDC Seg.

Unit Staff, 420 Fed. Appx. 576 (9th Cir. 2011); Grandinetti v.
Abercrombie, Civ. No. 15-00007 LEK/RLP; Grandinetti v. Shimoda,
Civ. No. 05–00442 JMS/BMK; Grandinetti v. Stampfle, Civ. No.
05–00692 HG/LEK.
IV.

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).
3

Andrews v.

This exception

only “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 (citations omitted).

The

allegations in the complaint are the focus of the inquiry.

Id.;

Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en
banc).

Claims of “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).
Grandinetti’s allegation that Defendants watched and
recorded him shred his mattress, then placed him on suicide
watch, does not plausibly suggest that he was in imminent danger
of serious physical injury when he submitted this Complaint or
when he shredded the mattress.

Nothing else within his pleading

suggests that Grandinetti was in imminent danger of serious
physical injury when he filed this action.

Grandinetti may not

proceed IFP in this action, and he did not concurrently pay the
civil filing fee when he commenced this action.
III.

CONCLUSION

Grandinetti fails to carry his burden of showing in his
Complaint that he was in imminent danger of serious physical
injury when he brought this action.
such a finding.

His own statements refute

He may not proceed without prepayment of the

civil filing fee.

This action is DISMISSED without prejudice
4

pursuant to 28 U.S.C. § 1915(g).

Grandinetti may move within

twenty-eight days to reopen this action for just cause, or he may
reassert his claims in a new action, with concurrent payment of
the $400.00 filing fee.

Any pending motions are DISMISSED.

The March 19, 2015, Deficiency Order is VACATED.

The

Clerk shall close this case and note on the docket that this
dismissal is without prejudice pursuant to 28 U.S.C. § 1915(g).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 30, 2015.

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

Grandinetti v. Martinez, et al., 1:15-cv-00081 SOM/KSC; 3 Stks 2015; J:\PSA Draft
Ords\SOM\Grandinetti 15-81 SOM

(1915(g) shred mattress, no imm. dng).wpd

5