Tia v. Tia et al

Filing 5

ORDER DENYING IN FORMA PAUPERIS APPLICATION PURSUANT TO 28 U.S.C.§ 1915(g) AND DISMISSING ACTION re 2 - Signed by JUDGE SUSAN OKI MOLLWAY on 10/18/2016. "Tia's in forma pauperis application is DENIED pursuant t o 28 U.S.C. § 1915(g) and this action is DISMISSED without prejudice to refiling these claims in a new action with concurrent payment of the civil filing fee. Any pending motions are terminated. The Clerk of Court shall close the case." (emt, )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). Peter R. Tia shall be served by first class mail at the address of record on October 19, 2016.

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

)
)
Plaintiff,
)
)
vs.
)
)
JOHN TIA, GAUULA TIPENI,
)
JAMES TIA, MELISSA AIONO, )
TANYA TIPENI, BENJAMIN
)
SALIMA, JASON AKASAKI,
)
CAPT. BAKER, ALL HCF
)
EMPLOYEES, OFFICE OF THE
)
ATTORNEY GENERAL, ARYAN
)
BROTHERHOOD, DEP’T OF
)
PUBLIC SAFETY, NEIL A.
)
ABERCROMBIE, CCA, FBI,
)
CAPT. CAL MOCK,
)
)
Defendants.
)
__________________________ )

CIV. NO. 16 00522 SOM/KSC
ORDER DENYING IN FORMA
PAUPERIS APPLICATION
PURSUANT TO 28 U.S.C.
§ 1915(g) AND DISMISSING
ACTION

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

Tia refers to a civil suit he

filed in this court, Tia v. Criminal Investigation
Demanded, 1:10 cv 00383 SOM/BMK, in which he demanded
that a criminal investigation be commenced under the
Racketeer Influenced and Corrupt Organizations Act
(RICO), 18 U.S.C. § 1964.

In that suit, Tia alleged

that his family members, Mainland and Hawaii prison
officials, the FBI, the Corrections Corporation of
America, and various gangs throughout the United States
were engaged in a vast criminal enterprise and
conspiracy against him.

On August 5, 2010, this court

dismissed Civil 1:10 cv 00383 SOM/BMK for failure to
state a claim.

ECF No. 14 (Order Denying Motion for

Reconsideration, Denying In Forma Pauperis Application,
Denying Request for Copies, And Dismissing Action).
Tia apparently seeks to reinstate the claims he
raised in 1:10 cv 00383 SOM/BMK in the present action.
He repeats his request for a judicial declaration that
all named Defendants are part of a criminal enterprise.
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 physical injury.

2

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 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.

Tia has accrued at least three “strikes” under
§ 1915(g):
(1) Tia v. Fujita, 1:08 cv 00575 HG/BMK (D.
Haw. Jan. 27, 2009) (dismissed for failure to
state a claim);
(2) Tia v. Criminal Investigation Demanded,
1:10 cv 00383 SOM/BMK (D. Haw. Aug. 5, 2010)
(dismissed as frivolous and for failure to
state a claim); and
(3) Tia v. Criminal Investigation, 1:10 cv
00441 DAE/BMK (D. Haw. July 30, 2010)
(dismissed as frivolous and for failure to
state a claim).
3

See PACER Case Locator http://pacer.psc.uscourts.gov
(last visited Oct. 10, 2016).

Tia has had notice of

these strikes and opportunities to challenge them.
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),
ECF 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 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.”
at 1055.

Id.

Tia’s allegations do not support an inference

that he was in imminent danger of serious physical
4

injury when he filed this action.

Tia may not proceed

without payment of the civil filing fee.
II.

CONCLUSION

Tia’s in forma pauperis application is DENIED
pursuant to 28 U.S.C. § 1915(g) and this action is
DISMISSED without prejudice to refiling these claims in
a new action with concurrent payment of the civil
filing fee.

Any pending motions are terminated.

The

Clerk of Court shall close the case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii; October 18, 2016.

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

Tia v. Tia, 1:16-cv-00522 SOM/KSC; 3stk 2016/ Tia 16-522 som (no im dgr racketeering
claims); J:\PSA Draft Ords\SOM\Tia 16-522 som (no im dgr racketeering claims).wpd

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