Tia v. HCF Inmate Grievance Specialist et al

Filing 6

ORDER DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(g) 3 Motion for Leave to Proceed in forma pauperis. Signed by JUDGE LESLIE E. KOBAYASHI on 03/08/2017. The IFP applica tion is DENIED and this action is DISMISSED without prejudice to Tia's refiling 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 this dismissal is pursuant to 28 U.S.C. § 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 were served by first class mail on the date of this docket entry

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

)
)
Plaintiff,
)
)
vs.
)
)
HCF INMATE GRIEVANCE
)
SPECIALIST, et al.,
)
)
Defendants.
)
__________________________ )

CIV. NO. 17-00089 LEK-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)
Before the court is pro se Plaintiff Peter R. Tia’s
prisoner civil rights complaint and in forma pauperis
(“IFP”) application.

ECF Nos. 1, 3.

Tia alleges that

Hawaii Department of Public Safety prison officials,
the City and County of Honolulu, and the Hawaii
Attorney General’s office have failed to timely mail
his documents, failed to answer his letters, and denied
him photocopying services.
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 . . . the district
court determines that the [earlier] 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).

“[D]ocket records may be

sufficient to show that a prior dismissal satisfies at
least one of the criteria under § 1915(g).”

Id. at

1120.
Tia has accrued three “strikes” under § 1915(g),
and has been notified of these strikes.1

Tia may not

proceed in a civil action without concurrent payment of

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.
2

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

F.3d 715, 717 (8th Cir. 1998); Luedtke v. Bertrand, 32
F. Supp. 2d 1074, 1077 (E.D. Wis. 1999).
Tia’s allegations do not show that he was in
imminent danger of serious physical injury when he
commenced this action and he may not proceed without
concurrent payment of the civil filing fee.
application is DENIED.
3

Tia’s IFP

III.

CONCLUSION

The IFP application is DENIED and this action is
DISMISSED without prejudice to Tia’s refiling 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 this dismissal is pursuant to 28 U.S.C. § 1915(g).
IT IS SO ORDERED.
DATED:

HONOLULU, HAWAII, March 8, 2017.

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

Tia v. HCF Inmate Grievance Specialist, et al., 1:17-cv-00089 LEK/KSC; 3stk 2017/Tia
17-89 lek

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