United States District Court, D. Hawaii.
E. Kobayashi United States District Judge
the court is pro se prisoner Francis Grandinetti’s
pleading, titled “Federal Complaint, UGEA, AEDPA, CJA
of 1964, PLRA § 1915(g), and, Habeas Corpus laws.”
Compl., Doc. No. 1. The Complaint is subtitled,
“Federal Habeas Corpus and Miranda-Rights
Violations.” Id. Grandinetti has not paid the
civil filing fee or submitted an in forma pauperis
application. For the following reasons, the Complaint and
action are DISMISSED without prejudice.
challenges an April 28, 2016 parole consideration proceeding,
which he alleges was a “fraudulent hearing with no
lawyer, P.D., phone calls, or ATC rights. (Miranda
violations.).” Grandinetti’s exhibits show that
he refused to appear at the April 28, 2016 hearing or sign
and acknowledge a form advising him of his rights at the
proceeding and ability to request assistance of counsel.
challenge to procedures used for consideration of parole is
not within the “core of habeas corpus, ” because
success in such an action will not necessarily lead to
immediate or speedier release. Nettles v. Grounds,
____ F.3d_____, 2016 WL 3997255 *3 (9th Cir. 2016). Rather,
success here will result in Grandinetti being granted a new
parole consideration hearing at which the Hawaii Paroling
Authority (“HPA”) will have discretion to grant
or deny him parole. See Ramirez v. Galaza, 334 F.3d
850, 852, 858 (9th Cir. 2003) (finding habeas jurisdiction
lacking in an action challenging parole procedures); see
also Dennison v. Waiawa Corr. Facility, No. CV 16-00389
JMS/KJM, 2016 WL 4419283, at *3 (D. Haw. Aug. 16, 2016)
(addressing HPA’s discretion to deny parole under Haw.
Rev. Stat. § 706-670(1) in civil rights action).
the nature of Grandinetti’s claims and the
court’s long history with his filings, the Clerk of
Court is DIRECTED to correct the docket to identify this
action as brought under 42 U.S.C. § 1983.
28 U.S.C. § 1915(g)
prisoner may not bring a civil action or appeal a civil
judgment IFP 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 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).
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, 398 F.3d at 1121. Once the district court
identifies three cases that qualify as strikes, the prisoner
has been put on notice as to what cases the court considered
in denying IFP. Id. The prisoner then bears the
burden of persuading the court that the prior dismissals did
not qualify as strikes. Id.
Grandinetti has accrued three strikes pursuant to 28 U.S.C.
§ 1915(g),  and has been notified many times regarding
these strikes, he may not proceed without concurrent payment
of the civil filing fee unless he plausibly alleges that he
is in imminent danger of serious physical injury.
NO IMMINENT DANGER
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 ...