Grandinetti v. Mun et al

Filing 4

ORDER: (1) VACATING DEFICIENCY ORDER; (2) DENYING INJUNCTIVE RELIEF; AND (3) DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(g) re 1 , 3 - Signed by JUDGE DERRICK K. WATSON on 5/26/2017. "Grandinetti does not plausibly allege that he is in imminent danger of serious physical injury and he may not proceed IFP in this action. Accordingly, the Deficiency Order, ECF No. 3, is VACATED and this action is DISMISSED without prejudice to his refiling these claims in a new action with concurrent payment of the civil filing fee. To the extent Grandinetti seeks injunctive relief, his request is DENIED. Any other pending motions are DENIED as moot. The Clerk of Court is DIRECTED to close the case and note this dismissal 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). Francis Grandinetti shall be served by first class mail at the address of record on May 30, 2017.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FRANCIS GRANDINETTI,
#A0185087,

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Plaintiff,
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vs.
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WES MUN, et al.,
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Defendants.
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_____________________________ )

Civ. No. 17-00215 DKW-KJM
ORDER: (1) VACATING DEFICIENCY
ORDER; (2) DENYING INJUNCTIVE
RELIEF; AND (3) DISMISSING
ACTION PURSUANT TO 28 U.S.C.
§ 1915(g)

ORDER: (1) VACATING DEFICIENCY ORDER; (2) DENYING
INJUNCTIVE RELIEF; AND (3) DISMISSING ACTION
PURSUANT TO 28 U.S.C. § 1915(g)
Before the court is pro se Plaintiff Francis Grandinetti’s civil rights
Complaint and “TRO Application.” ECF No. 1. Grandinetti is incarcerated at the
Saguaro Correctional Center (“SCC”), located in Eloy, Arizona. He names Hawaii
Department of Public Safety (“DPS”) officials and employees, the Honololu Police
Department and its former Chief Louis Kealoha, the Hawaii Attorney General, and
unidentified individuals who are apparently employed at SCC as Defendants.
Grandinetti complains that there was an “erroneous ‘Municipal Court’ hearing” in
Arizona on April 12, 2017, and that he is (or was) “‘too injured’ for any court
appearances or parole hearings.” Id., PageID #1. He says a “hospital exam, past-

due, is more appropriate and of merit.” Id. He provides no other details in support
of his claims or request for injunctive relief.
Because Grandinetti did not pay the $400.00 filing fee or file an Application
to Proceed In Forma Pauperis (“IFP”) when he filed this action, the court issued an
automatic Deficiency Order directing him to do so within twenty-eight days. ECF
No. 3. Based on the following, the Court vacates the Deficiency Order, denies
Grandinetti’s request for injunctive relief, and dismisses this action.
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 he or she “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). “[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.” Id. at 1120.
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The imminent danger exception only “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).
II. APPLICATION
Grandinetti has accrued at least three strikes pursuant to 28 U.S.C.
§ 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 is in
imminent danger of serious physical injury. He alleges no facts, makes no claims,
and provides no explanation of how any Defendant violated his rights, however,
nor does he offer evidence or even claims of imminent danger of serious physical
injury.

1

See, e.g., Grandinetti v. FTC Seg. Unit Staff, 426 F. App’x 576 (9th Cir. 2011);
Grandinetti v. Shimoda, 1:05-cv-00442 JMS-BMK (D. Haw. 2005); Grandinetti v. Stampfle,
1:05-cv-00692 HG-LEK (D. Haw. 2005). See PACER Case Locator
http://pacer.psc.uscourts.gov.
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Attached to Grandinetti’s Complaint and Motion are seventeen documents
styled as “Medical Requests,” several letters, and other random information. The
Court has reviewed these exhibits to determine whether they plausibly support an
allegation that Grandinetti faced imminent danger of serious physical injury when
he submitted this Complaint. They do not. These documents discuss Grandinetti’s
past injuries, note what he has or has not eaten, detail when he attended recreation,
and offer other mundane facts of his life at SCC. One document shows that
Grandinetti refused a physical or mental health examination before he was
allegedly supposed to appear at the Arizona Municipal Court as a witness,
contradicting his vague claim that he required a hospital examination before he
attended this hearing. See Compl., ECF No. 1, PageId #8. Grandinetti has not
made a credible, coherent, or plausible allegation that he is in imminent danger of
serious physical injury.
III. MOTION FOR INJUNCTIVE RELIEF
The standard for deciding requests for temporary restraining orders or
preliminary injunctions is the same and is well established. See Fed. R. Civ. P. 65.
“A preliminary injunction is an extraordinary remedy never awarded as of right.”
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). A
plaintiff seeking a temporary restraining order “must establish that he is likely to
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succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Id. at 20; accord Sierra Forest Legacy v. Rey,
577 F.3d 1015, 1021 (9th Cir. 2009). In cases brought by prisoners involving
conditions of confinement, injunctive relief “must be narrowly drawn, extend no
further than necessary to correct the harm the court finds requires preliminary
relief, and be the least intrusive means necessary to correct the harm.” 18 U.S.C.
§ 3626(a)(2).
Grandinetti provides no basis for issuing injunctive relief. Neither his
pleading, Motion, nor exhibits show serious questions going to the merits of any
claim, or that the balance of hardships tips sharply towards issuance of a
preliminary injunction, or “that there is a likelihood of irreparable injury and that
the injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell,
632 F.3d 1127, 1134-35 (9th Cir. 2011) (citing Winter test).
IV. CONCLUSION
Grandinetti does not plausibly allege that he is in imminent danger of serious
physical injury and he may not proceed IFP in this action. Accordingly, the
Deficiency Order, ECF No. 3, is VACATED and this action is DISMISSED
without prejudice to his refiling these claims in a new action with concurrent
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payment of the civil filing fee. To the extent Grandinetti seeks injunctive relief, his
request is DENIED. Any other pending motions are DENIED as moot. 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: May 26, 2017 at Honolulu, Hawaii.

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

Francis Grandinetti v. Wes Mun, et al., Civil No. 17-00215 DKW-KJM; ORDER:
(1) VACATING DEFICIENCY ORDER; (2) DENYING INJUNCTIVE
RELIEF; AND (3) DISMISSING ACTION PURSUANT TO 28 U.S.C.
§ 1915(g)

Grandinetti v.Mun, 1:17-cv-00215 DKW-KJM; 3 stks 2017 (Vac def ord, dny TRO, dsm)

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