Tia v. McKeon et al

Filing 4

ORDER DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(g) re 2 - Signed by JUDGE DERRICK K. WATSON on 4/13/2017. "Tia's Application to Proceed In Forma Pauperis is DENIED and th is action is DISMISSED without prejudice. Tia may, of course, refile these claims in a new action with concurrent payment of the civil filing fee. Any pending motions are terminated. The Clerk of Court is DIRECTED to close the case and note this d ismissal 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 April 13, 2017.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
PETER R. TIA, #A1013142,

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Plaintiff,
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vs.
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CHRIS MCKEON, HI DEP’T OF
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PUBLIC SAFETY, CCA INC.,
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Defendants.
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_______________________________ )

CIV. NO. 17-00161 DKW/RLP
ORDER DENYING IN FORMA
PAUPERIS APPLICATION AND
DISMISSING ACTION PURSUANT
TO 28 U.S.C. § 1915(g)

ORDER DENYING IN FORMA PAUPERIS APPLICATION 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 and Application to Proceed In Forma Pauperis (“IFP”). Tia alleges that
Defendants Chris McKeon, an inmate with whom Tia was once incarcerated, the
Hawaii Department of Public Safety, and the Corrections Corporation of America
conspired to murder various celebrities who apparently died in 2016. See Compl.,
ECF No. 1. Tia refers to several of his earlier cases that were dismissed pursuant
to 28 U.S.C. § 1915(g), alleging Defendants’ conspiracy caused their dismissal.
The court DENIES Tia’s IFP Application and DISMISSES this action without
prejudice.

I. 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.” Andrews
v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). “In some 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 three “strikes” under § 1915(g).1 He has had notice of these
strikes, and may not proceed without concurrent payment of the civil filing fee

1

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 (last visited
Nov. 14, 2016).
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unless he plausibly alleges that he was in imminent danger of serious physical
injury when he filed suit.
II. 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).
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 alleges no facts showing that he was in imminent danger of serious
physical injury when he commenced this action, from Defendants or others.
Because Tia fails to assert a plausible allegation that he was in imminent danger of
serious physical injury when he commenced this case, he may not proceed in forma
pauperis.
III. CONCLUSION
Tia’s Application to Proceed In Forma Pauperis is DENIED and this action
is DISMISSED without prejudice. Tia may, of course, refile these claims in a new
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action with concurrent payment of the civil filing fee. 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: April 13, 2017 at Honolulu, Hawai’i.

/s/ Derrick K. Watson
Derrick K. Watson
United States District Judge

Peter R. Tia v. Chris McKeon, et al.; Civil No. 17-00161 DKW/RLP; ORDER
DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING
ACTION PURSUANT TO 28 U.S.C. § 1915(g)
Tia v. McKeon, et al., 1:17-cv-00161 DKW/RLP; 3 Stks 2017/Tia 17-161 (no im. dgr RICO)

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