Grandinetti v. Olsen et al

Filing 4

ORDER DISMISSING ACTION WITHOUT PREJUDICE PURSUANT TO 28 U.S.C. § 1915(g). Signed by JUDGE LESLIE E. KOBAYASHI on 03/30/2015. (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic not ifications 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
FRANCIS GRANDINETTI,
#A0185087,

)
)
)
Plaintiff,
)
)
vs.
)
)
)
U.T.M. M. OLSEN, et al.,
)
)
Defendants.
_____________________________ )

CIV. NO. 15-00082 LEK/RLP
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.

For the

following reasons, this action is dismissed without prejudice
pursuant to 28 U.S.C. § 1915(g).
I.

BACKGROUND

Grandinetti complains that on or about March 5, 2015,
he was transferred to a new cell so that he could participate in
“new programming (RAD or SHIP-RAD).”

Id., PageID #3.

Grandinetti alleges that during the transfer to the new cell,
Defendants removed his personal belongings, gave him an
inadequate mattress, and refused to return his property or
bedding until he cleaned his new cell.

Id.

After Grandinetti

refused to clean the cell’s floor, and refused to eat his dinner
because his hands were dirty, the SCC Captain put him on “emptycell status.”

Id.

Grandinetti challenges this disciplinary

action in this action.

He asks that Defendants, apparently SCC

officials and guards and the Hawaii Director of Public Safety, be
summoned to appear before the First Circuit Court, State of
Hawaii, for filing misconduct reports against him at SCC.
Grandinetti labels this pleading as a “Federal Habeas
Corpus Application, FDP Issues (Disciplinary-Misconduct Case, FDC
Branch-HI),” and “Multi-Venue Custody, 28 U.S.C. § 1407 M.D.L.”
Id., PageID #1.

He also refers to “28 U.S.C. § 1915(g) PLRA 18

U.S.C. § 3006A, CJA IFP Cases,” apparently proffering a
preemptive challenge to any finding that he may not proceed in
forma pauperis (“IFP”).

See id.

Because he is challenging the

conditions of his confinement in SCC, this court construes
Grandinetti’s pleading as asserting civil rights claims under 42
U.S.C. § 1983.

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).
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,
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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

“[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 cases 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 (1) accrued three strikes under 28
U.S.C. § 1915(g), (2) been notified of these strikes many times,
and (3) been informed that he may not proceed IFP unless he is in
imminent 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;
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Grandinetti v. Shimoda, Civ. No. 05–00442 JMS/BMK; Grandinetti v.
Stampfle, Civ. No. 05–00692 HG/LEK.
III.

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.

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 allegations, that Defendants transferred
him to a new cell, exchanged his mattress, required him to clean
the new cell before they would return his belongings, and charged
him with an SCC disciplinary infraction when he refused to
properly clean the cell, do not plausibly suggest that he was in
imminent danger of serious physical injury when he submitted this
complaint.

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Moreover, these allegations echo Grandinetti’s
pleadings in Grandinetti v. Martinez, Civ. No. 15-00081 SOM/KSC,
filed on the same day as the present case.

In Civ. No. 15-00081,

Grandinetti alleged that he was videotaped shredding his mattress
on March 5, 2015, the day he alleges he was moved to a new cell
in this action, placed on suicide watch, and then charged with a
disciplinary infraction.

Nothing within either of these

pleadings suggests that Grandinetti was in imminent danger of
serious physical injury when he filed the present case.
Grandinetti may not proceed IFP in this action, and he did not
concurrently pay the civil filing fee when he commenced this
action.
IV.

CONCLUSION

Grandinetti fails to carry his burden to show that he
was in imminent danger of serious physical injury when he brought
this action.

His own statements refute such a finding.

Grandinetti may not proceed in this action without payment of the
civil filing fee.

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
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, Doc. No. 3, is
VACATED.

The Clerk shall close this case and note on the docket

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

Grandinetti v. Olsen, et al., 1:15-cv-00082 LEK/RLP; 3 Stks 2015; J:\PSA Draft
Ords\LEK\Grandinetti 15-82 lek (1915(g) ;

trsf to new cell, no imm. dng).wpd

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