Tia et al v. Knight et al
ORDER DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(g). Signed by JUDGE LESLIE E. KOBAYASHI on 04/04/2017. (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,
JOHN KNIGHT, et al.,
CIV. NO. 17-00136 LEK-KSC
ORDER DISMISSING ACTION
PURSUANT TO 28 U.S.C.
ORDER DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(g)
Pro se Plaintiff Peter R. Tia alleges that prison
officials at the West Tennessee Detention Facility and
at the Florence Correctional Center in Arizona violated
his constitutional rights in 1999 and 2000.
not paid the $400.00 filing and administrative fees to
commence this action or filed an Application to Proceed
In Forma Pauperis (“IFP”).
28 U.S.C. § 1915(g)
A prisoner may not bring a civil action or appeal a
civil judgment if:
the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility,
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 the prisoner 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, after careful
evaluation of the order dismissing an action, and other
relevant information, the district court determines
that the action was dismissed because it was frivolous,
malicious or failed to state a claim.”
King, 398 F.3d 1113, 1121 (9th Cir. 2005).
instances, the district court docket records may be
sufficient to show that a prior dismissal satisfies at
least one of the criteria under § 1915(g) and therefore
counts as a strike.”
Id. at 1120.
Tia has accrued at least three “strikes” under
§ 1915(g).1 Tia has been notified of these strikes and
may not proceed without concurrent payment of the civil
See Tia v. Fujita, 1:08-cv-00575 HG/BMK (D. Haw. Jan. 27,
2009) (dismissed for failure to state a claim); Tia v. Criminal
Investigation Demanded, 1:10-cv-00383 SOM/BMK (D. Haw. Aug. 5,
2010) (dismissed as frivolous and for failure to state a claim);
and Tia v. Criminal Investigation, 1:10-cv-00441 DAE/BMK (D. Haw.
July 30, 2010) (dismissed as frivolous and for failure to state a
claim). See PACER Case Locator http://pacer.psc.uscourts.gov.
filing fee unless he plausibly alleges that he was in
imminent danger of serious physical injury based on
Defendants’ actions when he filed suit.
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).
turns on the conditions a prisoner faced at the time
the complaint was filed, not some earlier or later
Id. at 1053.
“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 alleges no facts showing that he was in
imminent danger of serious physical injury when he
commenced this action.
His Complaint alleges claims
that occurred on the Mainland at least seventeen years
Tia may not proceed in this action without
concurrent payment of the civil filing fee.
This action is DISMISSED without prejudice to
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.
DATED: HONOLULU, HAWAII, April 4, 2017.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
Tia v. Knight, 1:17-cv-00136 LEK/KSC; 3stk 2017/Tia 17-28 lek
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