Tia v. Beitia et al

Filing 3

ORDER DENYING IN FORMA PAUPERIS APPLICATION 2 AND DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(g) 1 . Signed by JUDGE SUSAN OKI MOLLWAY on 5/24/2017. (afc)Excerpt of conclusion: "[T]his actio n is DISMISSED without prejudice. Tia may 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 dismissal is pursuant to 28 U.S.C. § 1915(g)." 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 were 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.
)
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SUE BEITIA, ALAN ASATO,
)
TOMMY LIU, U.S.D. COURT OF )
HONOLULU, HCF,
)
)
Defendants.
)
__________________________ )

CIV. NO. 17 00205 SOM KJM
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, federal and state employees, conspired to
violate his right to due process and obstruct justice
by interfering with his mail and grievances, and
failing to file documents he had forwarded to this
federal district court.

See Compl., ECF No. 1.

For

the following reasons, Tia’s IFP Application is DENIED
and this action is DISMISSED without prejudice.

I.

28 U.S.C. § 1915(g)

A prisoner may not bring a civil action or appeal
if he 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” as frivolous, malicious, or for failure
to state a claim, “unless the prisoner is under
imminent danger of serious physical injury.”
§ 1915(g).

28 U.S.C.

“[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).

“[D]istrict

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.”
at 1120.
The imminent danger “exception applies if the
complaint makes a plausible allegation that the
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Id.

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).
II.

APPLICATION

Tia has accrued three “strikes” under § 1915(g),1
has been notified of these strikes, and may not proceed
without concurrent payment of the civil filing fee
unless he plausibly alleges that he was in imminent
danger of serious physical injury when he filed suit.
Tia alleges no facts showing that he was in

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.
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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 in this action.
III.

CONCLUSION

Tia’s Application to Proceed In Forma Pauperis is
DENIED and this action is DISMISSED without prejudice.
Tia may refile 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; May 24, 2017.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Tia v. Beitia, 1:17-cv-00205 SOM-KJM; 3 Stks 2017/Tia 17-205 (no im. dgr MAIL griev)

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