Tia v. Public Safety, Dept. et al

Filing 4

ORDER DISMISSING ACTION PURSUANT TO 28 USC § 1915(g). Signed by JUDGE LESLIE E. KOBAYASHI on 01/26/2017. This action is DISMISSED without prejudice to Tias refiling these claims in a new action with concurrent payment of t he civil filing fee. Any pending motions are terminated. The Clerk of Court is DIRECTED to close the case and note this dismissal is pursuant to 28 U.S.C. § 1915(g). (eps, )CERTIFICATE OF SERVICE Participants not registered to receive electronic notifications served by first class mail on January 27, 2017

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

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)
Plaintiff,
)
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vs.
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DIR. DEPT. OF PUBLIC
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SAFETY, et al.,
)
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Defendants.
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__________________________ )

CIV. NO. 17-00028 LEK/RLP
ORDER DISMISSING ACTION
PURSUANT TO 28 U.S.C.
§ 1915(g)

ORDER DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(g)
Pro se Plaintiff Peter R. Tia alleges that prison
officials have prevented him from making photocopies
which has allegedly hindered his access to the courts.
Tia has not paid the $400.00 filing and administrative
fees to commence this action or filed an Application to
Proceed In Forma Pauperis (“IFP”).
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.

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

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.
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filing fee unless he plausibly alleges that he was in
imminent danger of serious physical injury based on
Defendants’ actions when he filed 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
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.

The court has also reviewed the

grievances and other documents attached to the
Complaint and concludes that they provide no basis for
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finding that Tia is in imminent danger of serious
physical injury.

Tia may not proceed in this action

without concurrent payment of the civil filing fee.
III.

CONCLUSION

This action is DISMISSED without prejudice to Tia’s
refiling these claims in a new action with concurrent
payment of the civil filing fee.
are terminated.

Any pending motions

The Clerk of Court 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 26, 2017.

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

Tia v. Dir. Dept. of Public Safety, 1:17-cv-00028 LEK/RLP; 3stk 2017/Tia 17-28 lek
(no im dgr NO IFP fraud, copies, grievances)

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