Tia v. All the Defendants
ORDER DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING ACTION PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915(g). Signed by JUDGE DERRICK K. WATSON on 06/15/2015. (eps)CERTIFICATE OF SERVICE Participants 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,
ALL THE DEFENDANTS FROM
USDC NO. CV15-0059 DKW-BMK,
CIVIL NO. 15-00215 DKW/BMK
ORDER DENYING IN FORMA
PAUPERIS APPLICATION AND
DISMISSING ACTION PURSUANT
TO 28 U.S.C. §§ 1915(e)(2)(B)(i)
ORDER DENYING IN FORMA PAUPERIS APPLICATION AND
DISMISSING ACTION PURSUANT TO
28 U.S.C. §§ 1915(e)(2)(B)(i) and 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. Tia sues
“All the Defendants” named in Tia v. Staggs, et al., Civ. No. 15-00159
DKW/BMK (D. Haw. May 7, 2015), which was dismissed without prejudice on
May 7, 2015, pursuant to 28 U.S.C. § 1915(g). See Compl., Doc. No. 1.
Tia again alleges that Defendants are part of a Japanese conspiracy to
prevent him from developing inventions to prevent global warming and cure
certain cancers.1 Tia alleges that, because he is a Mormon, a Polynesian, and a
member of one of the lost tribes of Israel (with Enrico Fermi and Al Capone),
Defendants acted to prevent him from attending graduate school and perfecting his
inventions. See generally, Compl., Doc. No. 1.
Tia’s IFP application is DENIED pursuant to 28 U.S.C. § 1915(g), and this
action is DISMISSED as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
I. 28 U.S.C. § 1915(g)
A prisoner may not bring a civil action or appeal a civil judgment 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
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.” Andrews v. King, 398 F.3d
Tia made these allegations in Civ. No. 15-00159, and in Tia v. Akasaki, et al., Civ. No.
15-00199 JMS/KSC (D. Haw. June 4, 2015) (dismissed with prejudice as frivolous and IFP
denied under 28 U.S.C. § 1915(g)).
1113, 1121 (9th Cir. 2005). “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 Tia’s federal cases qualify as “strikes” under § 1915(g):
Tia v. Fujita, Civ. No. 08-00575 HG/BMK
(D. Haw. Jan. 27, 2009) (dismissed for
failure to state a claim);
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
Tia v. Criminal Investigation, Civ. No. 1000441 DAE/BMK (D. Haw. July 30, 2010)
(dismissed as frivolous and for failure to
state a claim).
See PACER Case Locator http://pacer.psc.uscourts.gov (last visited June 9, 2015).
Tia has had notice and an opportunity to challenge these strikes. See, e.g., Tia v.
Borges, 1:12-cv-00158 HG/BMK (D. Haw. 2012), and App. No. 12-16158 (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 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. 28 U.S.C. § 1915(g).
“[T]he [imminent danger] exception turns on the conditions a prisoner faced
at the time the complaint was filed, not some earlier or later time.” Andrews v.
Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). “[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. Tia’s conspiracy claims
do not plausibly allege that he was in imminent danger of serious physical injury
when he filed this action, particularly due to any named Defendants’ action. Tia
may not proceed without prepayment of the civil filing fee, and his IFP application
II. 28 U.S.C. § 1915(e)(2)(B)(i)
Under 28 U.S.C. § 1915(e)(2), federal courts have the authority to dismiss
an action if it “is frivolous or malicious; . . . fails to state a claim on which relief
may be granted; . . . or seeks monetary relief against a defendant who is immune
from such relief.” Id. The term “‘frivolous,’ when applied to a complaint,
embraces not only the inarguable legal conclusion, but also the fanciful factual
allegation.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint is
frivolous when it “lacks an arguable basis either in law or in fact.” Id. A claim
lacks an arguable basis in fact “when the facts alleged rise to the level of the
irrational or the wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 33 (1992).
Claims describing “fantastic or delusional scenarios,” and “whose factual
contentions are clearly baseless” should be dismissed. Neitzke, 409 U.S. at 327-28.
Tia’s claims that the Defendants he named in Civ. No. 15-00159, who
include prison employees and inmates in Hawaii and on the Mainland, the U.S.
District Judges for the District of Hawaii, the Hawaii Paroling Authority, and the
Halawa Correctional Facility, conspired to prevent him from attending graduate
school, and thus, fulfilling his dream to cure cancer and control global warming,
because he is a Mormon, Polynesian, and member of the lost tribe of Israel, and
because they are Japanese, are frivolous, fantastic, and delusional. These claims
are not amenable to amendment. This action is therefore DISMISSED with
prejudice. See id.; Denton, 504 U.S. at 33; Sylvia Landfield Trust v. City of L.A.,
729 F.3d 1189, 1196 (9th Cir. 2013) (allowing dismissal with prejudice if
amendment is futile).
Tia’s in forma pauperis application is DENIED pursuant to 28 U.S.C.
§ 1915(g). Although normally the court would dismiss an action under § 1915(g)
without prejudice to refiling with concurrent payment of the filing fee, because
Tia’s claims are clearly frivolous and not amenable to amendment, this action is
DISMISSED with prejudice. Any pending motions are terminated. The Clerk of
Court shall close the case.
IT IS SO ORDERED.
DATED: June 15, 2015 at Honolulu,Hawai’i.
---------------------------------------------------------------------------------------------------PETER R. TIA, #A1013142 v. ALL THE DEFENDANTS FROM USDC
NO. CV15-0059 DKW-BMK, Civil No. 15-00215 DKW-BMK;
ORDER DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING
ACTION PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915(g)
Tia v. All Defendants, Civ. No. 15-00215 DKW/BMK; 3stk 2015/ Tia 15-215 dkw/ J:\PSA Draft Ords\DKW\Tia 15-215 dkw (v.
all D's 15-159).wpd
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