Grandinetti v. Jinbo et al

Filing 5

ORDER DISMISSING ACTION AND DENYING MOTION TO SERVE COMPLAINT. Signed by JUDGE LESLIE E. KOBAYASHI on 01/18/2017. (1) Grandinetti's Complaint and action are DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(g). If he reasserts these claims in a new action, he must prepay the civil filing fees.(2) Grandinetti's Motion on Service of Complaint is DENIED.(3) The Clerk is DIRECTED to close the case and note this dismissal is pursuant to 28 U.S.C. & #167; 1915(g). (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 January 19, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FRANCIS GRANDINETTI,
#A0185087,

)
)
)
Plaintiff,
)
)
vs.
)
)
SCOTT JINBO, et al.,
)
)
Defendants.
)
_________________________ )

Civ. No. 16-00674 LEK-KSC
ORDER DISMISSING ACTION AND
DENYING MOTION TO SERVE
COMPLAINT

ORDER DISMISSING ACTION AND
DENYING MOTION TO SERVE COMPLAINT
On December 27, 2016, pro se Plaintiff Francis
Grandinetti filed a prisoner civil rights Complaint
naming twenty-four Defendants.

Grandinetti is

incarcerated at the Saguaro Correctional Center
(“SCC”), located in Eloy, Arizona.

On January 12,

2017, Grandinetti filed a “Motion on Service of
Complaint.”
Grandinetti has not paid the $400.00 filing and
administrative fees to commence this action or filed an
Application to Proceed In Forma Pauperis (“IFP”).
court dismisses this action and denies the Motion.

The

I.

Three Strikes Provision of 28 U.S.C. § 1915(g)

A prisoner may not bring a civil action or appeal a
civil judgment IFP if he has had three or more federal
actions dismissed as frivolous, malicious, or for
failure to state a claim while he was incarcerated.
U.S.C. § 1915(g).

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The only exception to this rule is

if “the prisoner is under imminent danger of serious
physical injury.”

Id.

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 [former] 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).
“[T]he 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.

2

Grandinetti has accrued at least three strikes
pursuant to 28 U.S.C. § 1915(g),1 has been notified of
these strikes, and notified that he may not proceed
without complete concurrent prepayment of the civil
filing

fees unless he is in imminent danger of serious

physical injury.

28 U.S.C. § 1915(g).
II.

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).

This “exception

turns on the conditions a prisoner faced at the time
the complaint was filed, not some earlier or later
time.”

Id. at 1053.

Claims of imminent danger of

serious physical injury cannot be triggered solely by
complaints of past abuse.

See Ashley v. Dilworth, 147

1

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). See http://pacer.psc.uscourts.gov.
3

F.3d 715, 717 (8th Cir. 1998); Luedtke v. Bertrand, 32
F. Supp. 2d 1074, 1077 (E.D. Wis. 1999).
Grandinetti’s Complaint sets forth no allegations,
facts, or claims, and fails to explain Defendants’
connection to this matter.

Grandinetti’s Motion claims

Defendants stole or refused to return thousands of
receipts for his requests and grievances and are also
denying him grievances.

Even liberally construed,

these “pleadings” fail to make a credible or coherent
allegation that Grandinetti was in imminent danger of
serious physical injury when he commenced this action.
The court has also carefully reviewed Grandinetti’s
exhibits.

These letters and Inmate and Medical

Requests involve claims that Grandinetti: (1) is not
allowed to participate in programs required for early
release or housing in the general population;2 (2) did
not receive various items on his food tray on one
occasion; (3) is called names by guards and inmates;

2

Grandinetti recently filed suit alleging SCC officials
were trying to force him to participate in such programs and he
was refusing to do so, contradicting his exhibits here. See
Grandinetti v. Alexander, 1:16-cv-00470 LEK-KSC (D. Haw. 2016).
4

(4) has difficulty getting grievances; (5) did not
receive replies to his medical requests between
December 12, 2016, and January 3, 2017; and (6) was
told to submit Medical Requests and grievances to SCC
staff.3
These exhibits do not support a finding that
Grandinetti was in imminent danger of serious injury
when he filed the Complaint.

Moreover, Grandinetti

fails to explain why venue for his claims, which
apparently concern events that allegedly occurred in
Arizona, is proper in the District of Hawaii.

See 28

U.S.C. § 1391(b).
Grandinetti has not made a credible or coherent
allegation that he is in imminent danger of serious
physical injury.

3

One exhibit mentions Grandinetti’s discusion with a nurse
about his “hernia and phyma,” broken right thumb, torn left
shoulder, and past due HIV labs. Compl., ECF No. 1, PageId #4.
Grandinetti has raised these issues since at least 2008. See,
e.g., Grandinetti v. Stampfle, 1:16-cv-00436 JMS-RLP, ECF No. 1,
PageID #3-7 (holding that he had received responses to his
requests for care). He does not state that he was denied care,
but seems to raise these past injuries to show why he cannot
participate in special programs.
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III.

CONCLUSION

(1) Grandinetti’s Complaint and action are
DISMISSED without prejudice pursuant to 28 U.S.C.
§ 1915(g).

If he reasserts these claims in a new

action, he must prepay the civil filing fees.
(2) Grandinetti’s Motion on Service of Complaint is
DENIED.
(3)

The Clerk is DIRECTED to close the case and

note this dismissal is pursuant to 28 U.S.C. § 1915(g).
IT IS SO ORDERED.
DATED: HONOLULU, HAWAII, January 18, 2017.

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

Grandinetti v. Jinbo, 1:16-cv-00647 LEK-KSC; 3 stks 2017

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