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Grandinetti v. Matsuoka

United States District Court, D. Hawaii.

August 23, 2016

FRANCIS GRANDINETTI, #A0185087, Plaintiff
v.
BERT Y. MATSUOKA, et al., Defendants.

          DISMISSAL ORDER

          Leslie E. Kobayashi United States District Judge

         Before 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.”[1] 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.

         I. BACKGROUND

         Grandinetti 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.

         A 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).

         Due to 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.

         II. 28 U.S.C. § 1915(g)

         A 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).

         “[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, 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.

         Because Grandinetti has accrued three strikes pursuant to 28 U.S.C. § 1915(g), [2] 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.

         III. NO IMMINENT DANGER

         The 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 ...


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