Tia v. Matsuoka et al

Filing 4

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,

)
)
Plaintiff,
)
)
vs.
)
)
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,
)
)
Defendants.
)
__________________________ )

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.

Because

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).

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
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
(continued...)
2

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.
II.

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).

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).

1

(...continued)
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.
3

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.

The

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
housing.

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.
IV.

CONCLUSION

Tia is not in imminent danger of serious physical
injury and he may not proceed in forma pauperis in this
action.

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.
4

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:

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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