Grandinetti v. Matsuoka et al

Filing 6

DISMISSAL ORDER. Signed by JUDGE LESLIE E. KOBAYASHI on 08/23/2016. (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 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.
)
)
BERT Y. MATSUOKA, et al., )
)
Defendants.
)
_________________________ )

CIV. NO. 16-00419 LEK/RLP
DISMISSAL ORDER

DISMISSAL ORDER
Before the court is pro se prisoner Francis
Grandinetti’s pleading, titled “Federal Complaint,
UGEA, AEDPA, CJA of 1964, PLRA § 1915(g), and, Habeas
Corpus laws.”

Compl., Doc. No. 1.

The Complaint is

subtitled, “Federal Habeas Corpus and Miranda-Rights
Violations.”1

Id.

Grandinetti has not paid the civil

filing fee or submitted an in forma pauperis

1

Grandinetti routinely labels his pleadings as both habeas
and civil rights actions, without regard to the basis for his
claims. He apparently does this to avoid the restrictions
imposed on his proceeding in forma pauperis under 28 U.S.C.
§ 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).

application.

For the following reasons, the Complaint

and action are DISMISSED without prejudice.
I.

BACKGROUND

Grandinetti challenges an April 28, 2016 parole
consideration proceeding, which he alleges was a
“fraudulent hearing with no lawyer, P.D., phone calls,
or ATC rights. (Miranda violations.).”

Grandinetti’s

exhibits show that he refused to appear at the April
28, 2016 hearing or sign and acknowledge a form
advising him of his rights at the proceeding and
ability to request assistance of counsel.
A challenge to procedures used for consideration of
parole is not within the “core of habeas corpus,”
because success in such an action will not necessarily
lead to immediate or speedier release.

Nettles v.

Grounds, ___ F.3d ____, 2016 WL 3997255 *3 (9th Cir.
2016).

Rather, success here will result in Grandinetti

being granted a new parole consideration hearing at
which the Hawaii Paroling Authority (“HPA”) will have
discretion to grant or deny him parole.

See Ramirez v.

Galaza, 334 F.3d 850, 852, 858 (9th Cir. 2003) (finding
2

habeas jurisdiction lacking in an action challenging
parole procedures); see also Dennison v. Waiawa Corr.
Facility, No. CV 16-00389 JMS/KJM, 2016 WL 4419283, at
*3 (D. Haw. Aug. 16, 2016) (addressing HPA’s discretion
to deny parole under Haw. Rev. Stat. § 706-670(1) in
civil rights action).
Due to the nature of Grandinetti’s claims and the
court’s long history with his filings, the Clerk of
Court is DIRECTED to correct the docket to identify
this action as brought 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).

3

“[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.”
F.3d at 1121.

Andrews, 398

Once the district court identifies 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.

Because Grandinetti has accrued three strikes
pursuant to 28 U.S.C. § 1915(g),2 and has been notified
many times regarding these strikes, he may not proceed
without concurrent payment of the civil filing fee
unless he plausibly alleges that he is in imminent
danger of serious physical injury.

2

See, e.g., Grandinetti v. FTC Seg. Unit Staff, 426 F.
App’x 576 (9th Cir. 2011); Grandinetti v. Shimoda, 1:05-cv-00442
JMS-BMK (D. Haw. 2005); Grandinetti v. Stampfle, 1:05-cv-00692
HG-LK (D. Haw. 2005).
4

III.

NO IMMINENT DANGER

The imminent danger exception “applies if the
complaint makes a plausible allegation that the
prisoner faced ‘imminent danger of serious physical
injury’ at the time of filing.”

Andrews v. Cervantes,

493 F.3d 1047, 1055 (9th Cir. 2007).
Grandinetti’s allegation regarding the denial of
counsel at a parole consideration proceeding does not
support a finding that he was in imminent danger of
serious physical injury when he filed this action.

Nor

does anything else within the Complaint suggest that he
was in such danger when he filed this action.
Further, Grandinetti has no federal or statecreated due process right to parole, and therefore, he
fails to state a cognizable claim for relief based on
the denial of an attorney or other procedural problems
at a parole consideration proceeding in which he
refused to participate.

See Jago v. Van Curen, 454

U.S. 14, 17-21 (1981) (holding there is no
constitutionally-protected interest in parole even
after a parole date is set); Greenholtz v. Inmates of
5

Neb. Penal and Corr. Complex, 442 U.S. 1, 7 (1979);
Dennison, 2016 WL 4419283, at *3; Rideout v. Haw.
Paroling Auth., 2014 WL 1571286, at *3 (D. Haw. April
17, 2014) (recognizing that no state-created liberty
interest in parole is created under Hawaii’s parole
regime, and collecting District of Hawaii cases);
Turner v. Haw. Paroling Auth., 93 Haw. 298, 302, 1 P.3d
768, 772 (2000); Mujahid v. Apao, 795 F. Supp. 1020,
1024 (D. Haw. 1992).
IV.
(1)

CONCLUSION

The Complaint is DISMISSED for failure to

state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A(b).
(2)

This action is DISMISSED without prejudice

pursuant to 28 U.S.C. § 1915(g), for Grandinetti’s
failure to concurrently pay the civil filing fee when
he filed his Complaint and commenced this action.
(3)

The Clerk of Court is DIRECTED to identify

this action on the docket as a prisoner civil rights
action brought pursuant to 42 U.S.C. § 1983 and
terminate this case.
6

IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, August 23, 2016.

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

Grandinetti v. Matsuoka, et al., 1:16-cv-00419 LEK/RLP; 3 stks 2016 (not hab dny
parole dsm)

7