United States District Court, D. Hawaii
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE
the court is pro se prisoner Francis Grandinetti's latest
pleading, titled “Federal Habeas Corpus, Complaint, and
newer petition at law.” Doc. No. 1. Grandinetti further
titles the pleading, “Parole and Exile” Law,
Illegal Custody and DPS Hearings, Exile Arrest, Injury-torts
under PLRA 28 U.S.C. § 1915(g) clause.”
Id. He contends this is a multi-district litigation
action under 28 U.S.C. §§ 1404-1407, and subtitles
the document as, “Pro Se Petitioner's Federal
Habeas Corpus Complaint and Petition at Law,
Hawaii.” Id. Grandinetti names seven past
and present members of the Hawaii Paroling Authority
(“HPA”), the Director of the Hawaii Department of
Public Safety, Nolan P. Espinda, Hawaii Governor David Y.
Ige, the State of Hawaii, and “other agencies” as
Defendants. He has neither paid the civil filing fee nor
submitted an in forma pauperis application.
following reasons, the Court construes Grandinetti's
pleading as a civil rights complaint brought pursuant to 42
U.S.C. § 1983, alleging a violation of the Due Process
Clause during his recent parole consideration proceeding. For
the following reasons, the Court DISMISSES the Complaint and
action without prejudice.
again challenges his April 28, 2016 parole consideration
hearing, alleging that he was denied legal representation at
the hearing. See Civ. No. 16-00419 LEK (challenging
April 28, 2016 parole consideration hearing for alleged
denial of counsel and other non-specific reasons).
Grandinetti further challenges the HPA's denial of parole
to him since 1994. Documents attached to the Complaint show
that Grandinetti refused to attend the April 28, 2016 parole
proceeding and refused to accept delivery of the HPA's
letter explaining its decision to deny parole. Doc. No. 1-2,
PageID #25, 26, 29. The HPA denied Grandinetti parole because
it was “not convinced that [he] can substantially
comply with the terms and conditions of parole. Id.,
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 in this action can only result in Grandinetti being
granted a new parole consideration hearing that complies with
due process, not parole itself. That is, if Grandinetti
chooses to appear at such hearing, he will be appointed
counsel, but the HPA will still 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). Given
the nature of these claims, the Court construes this action
as brought under 42 U.S.C. § 1983, and DIRECTS the Clerk
of Court to correct the docket to reflect this.
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.
THE IMMINENT DANGER EXCEPTION
availability of the [imminent danger] exception turns on the
conditions a prisoner faced at the time the complaint was
filed, not some earlier or later time.” Andrews v.
Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). It
“applies if the complaint makes a plausible allegation
that the prisoner faced ...