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In Re: Peter R. Tia

September 7, 2012

IN RE: PETER R. TIA, PETITIONER.


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

ORDER DENYING WRIT OF ) MANDAMUS AND DISMISSING ) ACTION PURSUANT TO 28 U.S.C. ) § 1915 ORDER DENYING WRIT OF MANDAMUS AND DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915

I. INTRODUCTION

Before the court is pro se Petitioner Peter R. Tia's "Memorandum Writ." ECF No. 1. The court reviewed this document prior to its filing and determined that, although it refers to several civil actions -- Civil Nos. 11-00459 LEK-KSC (civil rights action, pending); 12-00246 DAE-BMK (civil rights action, closed); 12-00295 LEK-KSC (civil rights action, pending); 12-00304 SOM-BMK (habeas action, pending); 12-00374 SOM-RLP (civil rights action, closed); 12-00383 HG-RLP (civil rights action, closed); and 12-00473 LEK-RLP (civil rights action, closed) -- it could not be construed as a properly filed motion in each of these cases.

Instead, because it appears that Tia seeks an order directing the State of Hawaii to release him from its custody (based on his perception that he has been denied due process and access to the courts in the cases cited above), the document is construed as a petition for writ of mandamus invoking jurisdiction under 28 U.S.C. § 1361.

Tia has neither paid the filing fee nor submitted an in forma pauperis application. For the following reasons, the petition is DENIED and this action is DISMISSED.

II. ANALYSIS

A. The Petition is Subject to 28 U.S.C. § 1915(g)'s Restrictions

The court must initially determine whether Tia's petition for a writ of mandamus is subject to the provisions -- and restrictions -- of § 1915(g). And the answer depends on the nature of the relief sought and whether the claim for mandamus is analogous to typical suits brought under 42 U.S.C. § 1983. See Andrews v. King, 398 F.3d 1113, 1123 and n.12 (9th Cir. 2005) ("Andrews I") ("[S]ome habeas petitions may be little more than 42 U.S.C. § 1983 actions mislabeled as habeas petitions so as to avoid the penalties imposed by 28 U.S.C. § 1915(g). In such cases, the district court may determine that the dismissal of the habeas petition does in fact count as a strike for purposes of § 1915(g).").

First, it is unclear how Plaintiff intended his "Memorandum Writ" to be viewed or docketed by the court. He captioned the document by referencing seven different suits -- six of which are civil rights actions, one of which is a petition for writ of habeas corpus. Because he sought an order directing the State of Hawaii to release him from confinement, the court liberally construed the Memorandum as a petition for writ of mandamus in an effort to make sense of this request and to alleviate duplication of resources and confusion in these cases, many of which are closed.

Further, although Tia seeks release, he alleges that the District of Hawaii is denying him access to the courts and due process by dismissing his actions pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A(a-b), and 1915(g). Tia has made similar due process and denial of access to the court claims in his many actions, and he consistently seeks release in his civil rights actions. Despite the form of relief he seeks, Tia's claims are therefore analogous to many prisoner suits brought under 42 U.S.C. § 1983. Thus, they are subject to § 1915(g)'s proscriptions against proceeding in a civil action without prepayment of fees absent a plausible allegation of imminent danger of serious physical injury.

B. The Three-Strike Rule Applies to this Action

A prisoner may not bring a civil action or appeal a civil judgment in forma pauperis 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. ยง 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 I, 398 F.3d at 1121. "In some instances, the district court docket records may be sufficient to show that a prior ...


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