Tia v. Salas

Filing 4

ORDER DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(g) re 2 Motion for Leave to Proceed in forma pauperis. Signed by JUDGE LESLIE E. KOBAYASHI on 03/08/2017. The IFP appli cation 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 a nd 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 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.
)
)
SGT. SALAS,
)
)
Defendant.
)
__________________________ )

CIV. NO. 17-00093 LEK-RLP
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, 2.

Tia alleges that

Halawa Correctional Facility (“HCF”) corrections
officer Sgt. Salas has conspired against him in
violation of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. § 1961, 12 U.S.C.
§ 1251 (repealed) and 42 U.S.C. § 1981, because Salas
is of Mexican ancestry and believes Tia is African
American.

Tia complains that Salas conspired with HCF

and Department of Public Safety officials, the Aryan
Brotherhood, other inmates, United States District

Judge Susan Oki Mollway, the undersigned, and others
for the past eighteen years to deprive him of his
freedom.

See generally, Compl., ECF No. 1.
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).”
1120.

2

Id. at

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
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 that Salas tampered with his
mail and grievances to deny him his freedom do not show
that Tia 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 and his IFP application is DENIED.
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.

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DATED:

HONOLULU, HAWAII, March 8, 2017.

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

Tia v. Salas, 1:17-cv-00093 LEK/RLP; 3stk 2017/Tia 17-93 lek

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