Tia v. Head of the United States Court of Appeals for the Ninth Circuit et al

Filing 4

ORDER VACATING DEFICIENCY ORDER; DENYING IMPLIED REQUEST TO PROCEED INFORMA PAUPERIS; AND DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(g) re 1 , 3 - Signed by JUDGE HELEN GILLMOR on 7/10/2017. "The June 27, 2017 Deficiency Order is VACATED. Tia's implied request 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. The Clerk of Court is D IRECTED 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). Peter R. Tia served by first class mail to the address of record on July 10, 2017.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
PETER R. TIA, #A1013142,
Plaintiff,
vs.
HEAD OF THE UNITED STATES
COURT OF APPEALS FOR THE
NINTH CIRCUIT, CHIEF JUDGE
THOMAS DOE, CHIEF JUDGE
CANBY DOE, CHIEF JUDGE
MURGUIA DOE, HAWAII
PAROLING AUTHORITY, BERT
Y. MATSUOKA, CHRIS McKEON,
JOHN KNIGHT, CORRECTIONS
CORPORATION OF AMERICA,
HALAWA CORRECTIONAL
FACILITY, WARDEN SCOTT O.
HARRINGTON, CITY AND
COUNTY OF HONOLULU MAYOR
DOE, CITY OF SAN FRANCISCO
CA MAYOR DOE, HAWAII DEP’T
OF PUBLIC SAFETY, NOLAN
ESPINDA,
Defendants.
__________________________

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CIV. NO. 17-00303 HG-RLP
ORDER VACATING DEFICIENCY
ORDER; DENYING IMPLIED
REQUEST TO PROCEED IN
FORMA PAUPERIS; AND
DISMISSING ACTION PURSUANT
TO 28 U.S.C. § 1915(g)

ORDER VACATING DEFICIENCY ORDER; DENYING IMPLIED REQUEST
TO PROCEED IN FORMA PAUPERIS;
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.

ECF No. 1.

Although

Tia failed to submit an Application to Proceed In Forma
Pauperis (“IFP”) concurrently with his Complaint, he has
submitted current IFP applications in Civ. No. 17-00284
LEK-RLP, ECF No. 5 (dated June 19, 2017), and Civ. No.
17-00312 DKW-KSC, ECF No. 2 (dated Jun. 26, 2017).

The

Court will considers these requests to proceed IFP as
implied requests to do so herein.
Tia alleges Defendants, federal appellate court
judges, state prison and parole officials, private
prison officials, and other inmates, conspired against
him to obstruct justice in nine appellate cases that Tia
filed in the United States Court of Appeals for the
Ninth Circuit.1

For the following reasons, the

Deficiency Order, ECF No. 3, is VACATED, Tia’s implied
request to proceed IFP is DENIED, and this action is
DISMISSED without prejudice.

1

Tia lists App. Nos. 17-156612, 17-15970, 17-16207, 1715886, 15-80222, 17-15694, 17-15651, 17-15613, and 17-15627 as
the appeals at issue.
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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.”
(9th Cir. 2005).

Andrews v. King, 398 F.3d 1113, 1121

“[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
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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),2
has been notified of these strikes, and may not proceed
in a civil action without concurrent payment of the

2

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-cv00441 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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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.

Rather, Tia alleges Defendants conspired to

obstruct justice in his appellate actions.

This claim

is implausible, legally frivolous, and fails to show
that Tia was in imminent danger of serious physical
injury when he commenced this case.

Tia may not proceed

without concurrent payment of the filing fee in this
action.

III.

CONCLUSION

The June 27, 2017 Deficiency Order is VACATED.
Tia’s implied request 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.

The Clerk

of Court is DIRECTED to close the case and note this
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dismissal is pursuant to 28 U.S.C. § 1915(g).

IT IS SO ORDERED.
Dated: July 10, 2017, Honolulu, Hawaii.

_________________________________
Helen Gillmor
United States District Judge

Tia v. United States Court of Appeals for the Ninth Circuit, et al., 1:17-cv-00303 HGRLP; 3 Stks 2017/Tia 17-303 hg (consp. obs. jus)

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