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In Re: Regarding Michael C. Tierney

October 1, 2012

IN RE: REGARDING MICHAEL C. TIERNEY


The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge

DISMISSAL ORDER

Plaintiff Michael C. Tierney, a Hawaii inmate confined at the Saguaro Correctional Center ("SCC"), located in Eloy, Arizona, originally filed this pleading as Motion for Hearing in Tierney v. Hamada, No. 1:12-cv-00117 SOM. Because Plaintiff's Motion raised claims that are separate and distinct from those he raised in 1:12-cv-00117, and seek to append new, unrelated claims against new and unidentified defendants to those in 1:12-cv-00117 SOM, in an apparent attempt to avoid 28 U.S.C. § 1915(g)'s restrictions preventing the filing of a new action in forma pauperis, the court directed the Clerk to file Plaintiff's pleading as a new, randomly assigned prisoner civil rights action. ECF #1. Plaintiff chiefly protests his recent transfer from Hawaii to Arizona and seeks a hearing on this allegedly illegal "extradition." Id. at PageID #1.

I. "THREE STRIKES PROVISION" OF 28 U.S.C. § 1915(g)

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. § 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). "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.

Plaintiff has filed numerous civil actions and appeals in the federal courts since 1995. See PACER Case Locator, http://pacer.psc.uscourts.gov. At least three of Plaintiff's prior lawsuits qualify as "strikes" under § 1915(g):

(1) Tierney v. United States, 1:11-cv-00082 HG

(D. Haw. Feb. 7, 2011) (dismissing as frivolous and finding Plaintiff had accrued three strikes);

(2) Tierney v. United States, 1:10-cv-00675 HG

(D. Haw. Dec. 1, 2010) (dismissing as frivolous and finding Plaintiff had accrued three strikes); and

(3) Tierney v. United States, 1:10-cv-00166 HG

(D. Haw. Apr. 9, 2010) (dismissing as frivolous and finding the dismissal counted as a strike).*fn1 Therefore, Plaintiff may not bring a civil action without complete prepayment of the $350.00 filing fee unless he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g).

II. ANALYSIS

A. Imminent Danger ...


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