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Michael C. Tierney, #A0201434 v. Nolan Espinda

April 19, 2012

MICHAEL C. TIERNEY, #A0201434,) PLAINTIFF,
v.
NOLAN ESPINDA, CARL FASI, CITY AND COUNTY OF HONOLULU, DEFENDANTS.



The opinion of the court was delivered by: J. Michael Seabright United States District Judge

ORDER DENYING IN FORMA PAUPERIS AND DISMISSING ACTION

ORDER DENYING IN FORMA PAUPERIS AND DISMISSING ACTION

I. INTRODUCTION

Before the court is pro se Plaintiff Michael C. Tierney's prisoner civil rights Complaint and in forma pauperis ("IFP") application. Plaintiff's March 13, 2012 Complaint alleges that Halawa Correctional Facility ("HCF") Warden Nolan Espinda and inmate Carl Fasi violated his constitutional rights in March 2011, when Fasi allegedly assaulted and threatened Plaintiff and Espinda allegedly failed to protect him. ECF No. 1, Compl. at 5-7.

For the following reasons, Plaintiff's IFP application is DENIED and this action is DISMISSED without prejudice to Plaintiff's filing a new action with the $350 filing fee.

II. DISCUSSION

Plaintiff filed this action on March 13, 2012. ECF No. 1. On March 20, 2012, the court ordered Plaintiff to show cause why he should be allowed to proceed IFP in this action in light of his numerous prior dismissals and apparent 3-strike bar under 28 U.S.C. § 1915(g). ECF No. 4 (Order to Show Cause ("OSC")).

On March 28, 2012, Plaintiff filed a notice of appeal. ECF No. 5. On April 11, 2012, the Ninth Circuit dismissed Plaintiff's appeal for lack of jurisdiction. ECF No. 10. On April 17, 2012, Plaintiff filed a response to the OSC. ECF No. 12. The court now rules on this matter without a hearing pursuant to Local Rule 7.2(d).

A. 28 U.S.C. § 1915(g)

A prisoner may not bring a civil action or appeal a civil judgment under 28 U.S.C. § 1915 "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); Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir. 1997).

"Not all unsuccessful cases qualify as a strike under § 1915(g). Rather, § 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. Andrews therefore allows the court to raise the § 1915(g) sua sponte, and the prisoner bears the ultimate burden of persuading the court that § 1915(g) does not bar pauper status for him. Id.

B. Plaintiff's Prior Dismissals

Plaintiff has filed numerous civil actions in this and other federal courts that were dismissed as frivolous or failing to state a claim. See, e.g., Tierney, 128 F.3d at 1312 (finding that Plaintiff had three strikes under 28 U.S.C. ยง 1915(g)); Tierney v. Clinton, 1996 WL 310171 (D.C. Cir. May 28, 1996), aff'g Tierney v. Clinton, Civ. No. 1:95-01268 UNA (dismissing action as frivolous); Tierney v. United States, Civ. No. 11-00082-HG (D. Haw. 2011) (dismissing as frivolous and finding Plaintiff had accrued three strikes); Tierney v. United States, Civ. No. 10-00675-HG (D. ...


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