Tia v. CCA, Inc. et al

Filing 5

ORDER VACATING DEFICIENCY ORDER AND DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(g). Signed by JUDGE LESLIE E. KOBAYASHI on 03/08/2017. Tia is not in imminent danger of serious physical injury and he may not proceed IFP in this action. Accordingly, the Deficiency Order, ECF No. 2 , 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. (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.
)
)
CCA, Inc., et al.,
)
)
Defendants.
)
__________________________ )

CIV. NO. 17-00097 LEK-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 fee or an
Application to Proceed In Forma Pauperis (“IFP”), the
court issued an automatic Deficiency Order directing
him to do so.

ECF No. 2.

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 PACER Case Locator
http://pacer.psc.uscourts.gov.
3

Tia alleges Defendants Yvonne Jinbo, Edgar
Vergara, Shanah Doe, Libio Hernandez, and Flo
Magallanes breached a duty under state law to notify
the Hawaii Paroling Authority (“HPA”) that: (1) a state
court order for his involuntary medication expired on
April 25, 2015, and (2) he has proof of compliance with
a condition for release on parole.

Tia further claims

that (1) Defendant Jinbo said the Ombudsman has no duty
to investigate his claims, and (2) Defendants impaired
his ability to grieve his claims.

These allegations do

not show 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 IFP in this action.
Accordingly, the Deficiency Order, ECF No. 2, 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.
pending motions are terminated.

Any

The Clerk of Court is

DIRECTED to close the case and note this dismissal is
4

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. CCA, Inc., 1:17-cv-00097 LEK/KSC; 3stk 2017/Tia 17-97 lek

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