Tia v. Matsuoka et al
ORDER VACATING DEFICIENCY ORDER AND DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(g) re 1 , 3 - Signed by JUDGE SUSAN OKI MOLLWAY on 3/13/2017. "The Clerk of Court is DIRECTED to close the case and note this dismis sal is pursuant to 28 U.S.C. § 1915(g)." (emt, )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). Peter R. Tia served by first class mail at the address of record on March 13, 2017.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
PETER R. TIA, #A1013142,
Bert Y. Matusoka, Fituina )
F. Tua, Alfred Itumura,
Libio Hernandez, Hawaii
Paroling Authority, CCA,
Inc., City & County of
Honolulu, FBI, CIA, Edmund )
Hyun, HCF IGS, Nolan
Espinda, Dana Ishibashi,
Derrick K. Watson,
CIV. NO. 17 00095 SOM KSC
ORDER VACATING DEFICIENCY
ORDER AND DISMISSING
ACTION PURSUANT TO 28
U.S.C. § 1915(g)
ORDER VACATING DEFICIENCY ORDER 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.
ECF No. 1.
Tia did not submit the $400.00 filing or an Application
to Proceed In Forma Pauperis (“IFP”), the court issued
an automatic Deficiency Order directing him to do so.
ECF No. 3.
For the following reasons, the court
VACATES the Deficiency Order and DISMISSES this action
pursuant to 28 U.S.C. § 1915(g).
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).”
Tia has accrued three “strikes” under § 1915(g),
and has been notified of these strikes.1
Tia may not
See Tia v. Criminal Investigation, 1:10-cv-00441 DAE (D.
Haw. 2010) (dismissed as frivolous and ftsc); Tia v. Criminal
proceed in a civil action in this court 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.
NO IMMINENT DANGER
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).
turns on the conditions a prisoner faced at the time
the complaint was filed, not some earlier or later
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).
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 http://pacer.psc.uscourts.gov.
On May 7, 2015, United States District Judge
Derrick K. Watson dismissed Tia v. Staggs, Civ. No. 15
00159 DKW BMK (D. Haw. 2015).
See id., ECF No. 4.
Ninth Circuit Court of Appeals dismissed Tia’s appeal
on August 10, 2015.
Id., ECF No. 11.
On or about
August 13, 2016, the Hawaii Paroling Authority
tentatively approved Tia’s request for release on
parole, contingent on Tia’s securing appropriate
Tia alleges these facts show that Defendants
conspired against him to obstruct justice.
The court has carefully reviewed Tia’s Complaint.
Nothing within the Complaint shows that Tia was in
imminent danger of serious physical injury when he
commenced this action.
Tia is not in imminent danger of serious physical
injury and he may not proceed in forma pauperis in this
The Deficiency Order, ECF No. 3, is VACATED
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
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.
March 13, 2017.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Tia v. Matsuoka, 1:17-cv-00095 SOM/KSC; 3stk 2017/Tia 17-95 som
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