Tia v. Bureau of Prisons et al

Filing 4

ORDER DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(g) re 2 - Signed by JUDGE SUSAN OKI MOLLWAY on 1/26/2017. " Tia's in forma pauperis application is DENIED pursuant to 28 U. S.C. § 1915(g) and this action is DISMISSED without prejudice to Tia 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 and note that this dismissal is pursuant to 28 U.S.C. § 1915(g)." (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 January 27, 2017.

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

)
)
Plaintiff,
)
)
vs.
)
)
BUREAU OF PRISONS, et al., )
)
Defendants.
)
__________________________ )

CIV. NO. 17-00027 SOM/KSC
ORDER DENYING IN FORMA
PAUPERIS APPLICATION AND
DISMISSING ACTION PURSUANT
TO 28 U.S.C. § 1915(g)

ORDER DENYING IN FORMA PAUPERIS APPLICATION AND
DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(g)
Pro se Plaintiff Peter R. Tia alleges that prison
officials have conspired to violate the Fourth
Amendment by confiscating or intending to confiscate
his legal papers forty-eight hours before he is
released on parole.

It is unclear whether they have

confiscated Tia’s papers, but it does not appear that
Tia has been released on parole.

Tia has filed an

Application to Proceed In Forma Pauperis (“IFP”).
the following reasons, the court DENIES Tia’s IFP
application and DISMISSES this action without
prejudice.

For

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.
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.

2

Tia has accrued at least three “strikes” under
§ 1915(g).1

Tia has been notified of these strikes, and

may not proceed without concurrent payment of the civil
filing fee unless he plausibly alleges that he was in
imminent danger of serious physical injury based on
Defendants’ actions when he filed this suit.
II.

THE IMMINENT DANGER EXCEPTION

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

1

See Tia v. Fujita, 1:08-cv-00575 HG/BMK (D. Haw. Jan. 27,
2009) (dismissed for failure to state a claim); 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 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). See PACER Case Locator http://pacer.psc.uscourts.gov
(last visited Nov. 14, 2016).
3

complaints of past abuse.

See Ashley v. Dilworth, 147

F.3d 715, 717 (8th Cir. 1998); Luedtke v. Bertrand, 32
F. Supp. 2d 1074, 1077 (E.D. Wis. 1999).
Tia alleges no facts showing that he was in
imminent danger of serious physical injury when he
commenced this action.

Rather, he complains his

materials might be or have been confiscated and lost by
prison officials.

Tia may not proceed in this action

without concurrent payment of the civil filing fee.
III.

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 Tia 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 and note that
this dismissal is pursuant to 28 U.S.C. § 1915(g).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 26, 2017.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Tia v. Bureau of Prisons, 3stk 2017/ Tia 17-27 som (no im dgr fraud, consp. 4th amd)

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