Tia v. CCA, Inc. et al

Filing 5

ORDER DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(g). Signed by JUDGE LESLIE E. KOBAYASHI on 02/14/2017. (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 February 15, 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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CCA INC., et al.,
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Defendants.
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__________________________ )

CIV. NO. 17-00043 LEK-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 Mainland
and Hawaii prison officials and unnamed individuals at
this court have conspired to obstruct justice and
prevent his release on parole, under 18 U.S.C. § 1961
et seq.

Tia alleges this conspiracy has prevented his

release on parole.

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 he has:

on 3 or more prior occasions, while
incarcerated . . ., 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 [he] 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).

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.”
1120.

2

Id. at

Tia has accrued three “strikes” under § 1915(g).1
The court has notified him of these strikes and Tia 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.

Claims of

“imminent danger of

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

See Ashley v. Dilworth, 147

1

See Tia v. Criminal Investigation, 1:10-cv-00441 DAE (D.
Haw. 2010) (dismissed as frivolous and ftsc); Tia v. Criminal
Investigation, 1:10-cv-00383 SOM (D. Haw. 2010); and (same); Tia
v. Fujita, 1:08-cv-00575 HG (D. Haw. 2009) (dismissed for failure
to state claim). See PACER Case Locator
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).
Tia’s allegations of a conspiracy to prevent his
release on parole do not plausibly support a showing
that he was in imminent danger of serious physical
injury when he commenced this action.

Tia may not

proceed 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.

4

DATED AT HONOLULU, HAWAII, February 14, 2017.

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

Tia v. CCA, Inc., 1:17-cv-00043 LEK/KSC; 3stk 2017/Tia 17-43 lek

5

(no imdgr RICO)