Tia v. Sakai et al

Filing 4

ORDER DISMISSING ACTION AND DENYING IN FORMA PAUPERIS APPLICATION PURSUANT TO 28 U.S.C. § 1915(g). Signed by JUDGE LESLIE E. KOBAYASHI on 04/08/2015. Plaintiff's in forma pauperis application is DENIED and his Complaint and action are DISMISSED without prejudice. If Plaintiff wishes to reassert these claims, he may do so by concurrently submitting the entire $350.00 filing fee when he files the action. Any pending motions are terminated. The Clerk of Court shall close the case. (eps )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 were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
PETER R. TIA, #A1013142,

)
)
Plaintiff,
)
)
vs.
)
)
TED SAKAI, et al.,
)
)
)
Defendants.
)
______________________________ )

CIVIL NO. 15-00107 LEK/RLP
ORDER DISMISSING ACTION AND
DENYING IN FORMA PAUPERIS
APPLICATION PURSUANT TO 28
U.S.C. § 1915(g)

ORDER DISMISSING ACTION AND DENYING IN FORMA PAUPERIS APPLICATION
PURSUANT TO 28 U.S.C. § 1915(g)
Before the court is pro se Plaintiff Peter R. Tia’s
prisoner civil rights Complaint and in forma pauperis (“IFP”)
application.

Doc. Nos. 1, 2.

Plaintiff alleges that the Hawaii

Attorney General’s Office, Department of Public Safety (“DPS”),
and DPS employees Ted Sakai, Dovie Borges, Lyle Antonio, and
Mailroom Doe violated his constitutional right of access to the
court with deliberate indifference to his health by mishandling a
letter he intended for delivery to this court regarding another
civil suit, Tia v. Honolulu U.S. Attorney’s Office, Civ. No. 1500075 JMS/BMK.

For the following reasons, this

action is

DISMISSED without prejudice and Plaintiff’s in forma pauperis
application is DENIED pursuant to 28 U.S.C. § 1915(g).

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.
At least three of Plaintiff’s federal cases qualify as
“strikes” under § 1915(g):
(1)

Tia v. Fujita, Civ. No. 08-00575
HG/BMK (D. Haw. Jan. 27, 2009)
(dismissed for failure to state a
claim);

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(2)

Tia v. Criminal Investigation
Demanded, Civ. No. 10-00383 SOM/BMK
(D. Haw. Aug. 5, 2010) (dismissed
as frivolous and for failure to
state a claim); and

(3)

Tia
No.
30,
and

v. Criminal Investigation, Civ.
10-00441 DAE/BMK (D. Haw. July
2010) (dismissed as frivolous
for failure to state a claim).

See PACER Case Locator http://pacer.psc.uscourts.gov (last
visited March 31, 2015).

Plaintiff has had notice and an

opportunity to challenge these strikes.

See, e.g., Tia v.

Borges, Civ. No. 12-00158 HG/BMK (D. Haw. 2012), and App. No. 1216158 (9th Cir. Aug. 9, 2012), Doc. No. 26 (“[T]he district court
correctly determined that appellant has had three or more prior
actions or appeals dismissed as frivolous, malicious, or for
failure to state a claim[.]”); Tia v. Baker, Civ. No. 11-00098
HG/KSC (D. Haw. 2011), Doc. No. 20; Tia v. Doe Defendants as
Aggrieved, Civ. No. 11-00352 SOM/RLP (D. Haw. 2011), Doc. No. 13;
Tia v. Mollway, Civ. No. 11-00421 JMS/KSC (D. Haw. 2011), Doc.
No. 8.

Plaintiff may not bring a civil action without complete

prepayment of the $400.00 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).
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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.

Plaintiff’s claims that Defendants interfered with his
access to the court by misidentifying a single piece of his legal
mail as personal mail, and then returned that mail to him
pursuant to a DPS policy that allows indigent inmates only one
free personal letter per week, neither states a cognizable claim
for relief, nor plausibly alleges that Plaintiff was in imminent
danger of serious physical injury when he filed this action.
Nothing else within the Complaint suggests that Plaintiff was in
imminent danger of serious physical injury, particularly due to
any named Defendants’ action, when he filed this action.
Plaintiff may not proceed without prepayment of the civil filing
fee.
III.

CONCLUSION

Plaintiff’s in forma pauperis application is DENIED and
his Complaint and action are DISMISSED without prejudice.

If

Plaintiff wishes to reassert these claims, he may do so by
concurrently submitting the entire $350.00 filing fee when he
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files the action.

Any pending motions are terminated.

The Clerk

of Court shall close the case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 8, 2015.

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

Tia v. Sakai, Civ. No. 15-00107 LEK/RLP; psa 3stk 2015/ J:\PSA Draft Ords\LEK\Tia v
Sakai 15-107 lek (restrctd mail).wpd

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