Tia v. Hawaii Paroling Authority et al

Filing 4

ORDER DISMISSING 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 based on any all eged tentative decisions of the HPA 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 concurren t 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.
)
)
HAWAII PAROLING AUTHORITY, )
et al.,
)
)
Defendants.
)
__________________________ )

CIV. NO. 17-00102 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.

TIA’S CLAIMS

Tia alleges that Hawaii Paroling Authority (“HPA”)
former and current board members Bert Y. Matsuoka and
Fituina F. Tua conspired with Hawaii Ombudsman

Alfred Itumura, Department of Public Safety officials,
and others to impose improper conditions of parole when
they granted him tentative approval of parole on
December 13, 2016.

Tia says this tentative approval is

conditioned on his showing he has been accepted in
appropriate housing and agreeing to comply with all
medical orders by his treating physicians.

Tia alleges

the latter condition violates a state court order that
released him from being involuntarily medicated between
2013 and 2015.

See generally, Compl., ECF No. 1.

Tia

refers to Exhibits A and B as proof of these allegedly
improper parole conditions, but fails to attach such
exhibits to the Complaint.
II.

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).
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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
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.
III.

NO IMMINENT DANGER

The imminent danger “exception applies if the

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.
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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 that Matsuoka and Tua
tentatively approved his release on parole subject to
his compliance with physicians’ medical orders does not
show that Tia was in imminent danger of serious
physical injury when he commenced this action.

Tia has

not been granted parole, thus, he is not subject to any
allegedly improper conditions of parole.

Even

accepting that Tia’s future release on parole may be
conditioned upon his compliance with physicians’ orders
to take prescribed medication does not show that Tia is
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or will be placed in imminent danger of serious
physical injury without more concrete allegations.
IV.

CONCLUSION

Tia is not in imminent danger of serious physical
injury based on any alleged tentative decisions of the
HPA 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
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. HPA, 1:17-cv-00102 LEK/RLP; 3stk 2017/Tia 17-102 lek

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