United States District Court, D. Hawaii
ORDER DISMISSING ACTION AND DENYING MOTION TO SERVE
E. Kobayashi, United States District Judge
December 27, 2016, pro se Plaintiff Francis Grandinetti filed
a prisoner civil rights Complaint naming twenty-four
Defendants. Grandinetti is incarcerated at the Saguaro
Correctional Center (“SCC”), located in Eloy,
Arizona. On January 12, 2017, Grandinetti filed a
“Motion on Service of Complaint.” Grandinetti has
not paid the $400.00 filing and administrative fees to
commence this action or filed an Application to Proceed In
Forma Pauperis (“IFP”). The court dismisses this
action and denies the Motion.
Three Strikes Provision of 28 U.S.C. §
prisoner may not bring a civil action or appeal a civil
judgment IFP if he has had three or more federal actions
dismissed as frivolous, malicious, or for failure to state a
claim while he was incarcerated. 28 U.S.C. § 1915(g).
The only exception to this rule is if “the prisoner is
under imminent danger of serious physical injury.”
“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 [former] 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). “[T]he 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.
has accrued at least three strikes pursuant to 28 U.S.C.
§ 1915(g),  has been notified of these strikes, and
notified that he may not proceed without complete concurrent
prepayment of the civil filing fees unless he is in imminent
danger of serious physical injury. 28 U.S.C. § 1915(g).
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 filing.” Andrews v. Cervantes, 493
F.3d 1047, 1055 (9th Cir. 2007). This “exception turns
on the conditions a prisoner faced at the time the complaint
was filed, not some earlier or later time.”
Id. at 1053. Claims of imminent danger of serious
physical injury cannot be triggered solely by complaints of
past abuse. See Ashley v. Dilworth, 147 F.3d 715,
717 (8th Cir. 1998); Luedtke v. Bertrand, 32
F.Supp.2d 1074, 1077 (E.D. Wis. 1999).
Complaint sets forth no allegations, facts, or claims, and
fails to explain Defendants' connection to this matter.
Grandinetti's Motion claims Defendants stole or refused
to return thousands of receipts for his requests and
grievances and are also denying him grievances. Even
liberally construed, these “pleadings” fail to
make a credible or coherent allegation that Grandinetti was
in imminent danger of serious physical injury when he
commenced this action.
court has also carefully reviewed Grandinetti's exhibits.
These letters and Inmate and Medical Requests involve claims
that Grandinetti: (1) is not allowed to participate in
programs required for early release or housing in the general
population; (2) did not receive various items on his
food tray on one occasion; (3) is called names by guards and
inmates; (4) has difficulty getting grievances; (5) did not
receive replies to his medical requests between December 12,
2016, and January 3, 2017; and (6) was told to submit Medical
Requests and grievances to SCC staff.
exhibits do not support a finding that Grandinetti was in
imminent danger of serious injury when he filed the
Complaint. Moreover, Grandinetti fails to explain why venue
for his claims, which apparently concern events that
allegedly occurred in Arizona, is proper in the District of
Hawaii. See 28 U.S.C. § 1391(b).
has not made a credible or coherent allegation that he is in
imminent danger of serious physical injury.
Grandinetti's Complaint and action are DISMISSED without
prejudice pursuant to 28 U.S.C. § 1915(g). If he
reasserts these claims in a new ...