Tia v. Bureau of Prisons et al

Filing 4

ORDER DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(g) - Signed by JUDGE SUSAN OKI MOLLWAY on 2/10/2017. This action is DISMISSED without prejudice to Tia's refiling of these claims in a new action with concurrent payment of the civil filing fee. Any pending motions are terminated. The Clerk of Court is DIRECTED to close the case and note that this dismissal is pursuant to 28 U.S.C. § 1915(g). (emt, )CERTIFICATE OF SERVICEParticipa nts 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 served by first class mail at the address of record on February 10, 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. 17-00041 SOM-KSC
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 lost copies of forty-eight case files
and evidence from his previous cases.

He alleges that

Defendants conspired to lose his property and seeks
relief under the Fourth Amendment.

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

1

See 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); Tia v. Criminal Investigation Demanded, 1:10cv-00383 SOM/BMK (D. Haw. Aug. 5, 2010) (dismissed as frivolous
and for failure to state a claim); and Tia v. Fujita, 1:08-cv00575 HG/BMK (D. Haw. Jan. 27, 2009) (dismissed for failure to
(continued...)
2

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 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.
Tia fails to allege that he was in imminent

danger of serious physical injury when he commenced
this action and the court cannot conclude that he was
based on his allegations.

The court has reviewed Tia’s

exhibits and finds that they provide no basis for
finding that Tia is in imminent danger of serious
1

(...continued)
state a claim). See PACER Case Locator
http://pacer.psc.uscourts.gov
3

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 of these claims in a new action with
concurrent payment of the civil filing fee.
pending motions are terminated.

Any

The Clerk of Court is

DIRECTED to close the case and note that this dismissal
is pursuant to 28 U.S.C. § 1915(g).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 10, 2017.

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

Tia v. Bureau of Prisons, 1:17-cv-00041 SOM/KSC; 3stk 2017/Tia 17-41 SOM
lost prop)

4

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