Tia v. Uehara 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 5/31/2017. (afc) "[T]his action is DISMISSED without prejudice. Tia may refile these cl aims 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 will be served by first class mail on June 1, 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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NOLAN UEHARA, et al.,
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Defendants.
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_______________________________ )

CIV. NO. 17-00249 DKW-RLP
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, state employees, inmates, and family members, conspired to violate
his civil rights by issuing a misconduct report to him and allegedly interfering with
his mail and grievances. He broadly alleges this constitutes, “Kidnapping, Murder,
[and] extortion” under the Racketeer Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. § 1961 et seq. See Compl., ECF No. 1. 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.” 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.
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.

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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 imminent danger of serious
physical injury when he commenced this action, from Defendants or others. The
gravamen of his Complaint is that Defendant Nolan Uehara issued him a
misconduct report on May 15, 2017, and later presided over the Adjustment
Committee hearing on the matter. Tia attempts to tie this to past cases that he has
filed, other prisoners, and grievances he has submitted against other prison
employees and officials. Although Tia broadly refers to “Kidnapping” and
“Murder,” he alleges no coherent facts regarding these references. Tia fails to
assert a plausible allegation that he was in imminent danger of serious physical

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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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. 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: May 31, 2017 at Honolulu, Hawaii.

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

Peter R. Tia v. Nolan Uehara, et al.; Civil No. 17-00249 DKW RLP; ORDER
DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING
ACTION PURSUANT TO 28 U.S.C. § 1915(g)
Tia v. Uehara, et al., 1:17-cv-00249 DKW-KSC; 3 Stks 2017/Tia 17-249 dkw (no im. dgr conspiracy disc. hrg, murder, mail,
griev)

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