United States District Court, D. Hawaii
PETER R. TIA, #A1013142, Plaintiff,
HAWAII PAROLING AUTHORITY, et al., Defendants.
ORDER VACATING DEFICIENCY ORDER AND DISMISSING ACTION
PURSUANT TO 28 U.S.C. § 1915(g)
E. Kobayashi United States District Judge
the court is pro se Plaintiff Peter R. Tia's prisoner
civil rights complaint. ECF No. 1. Because Tia did not submit
the $400.00 filing fee or an Application to Proceed In Forma
Pauperis (“IFP”), the court issued an automatic
Deficiency Order directing him to do so. ECF No. 2. For the
following reasons, the court VACATES the Deficiency Order and
DISMISSES this action pursuant to 28 U.S.C. § 1915(g).
alleges that Hawaii Paroling Authority (“HPA”)
former and current board members Bert Y. Matsuoka and Fituina
F. Tua conspired with Hawaii Ombudsman Alfred Itumura,
Department of Public Safety officials, and others to impose
improper conditions of parole when they granted him tentative
approval of parole on December 13, 2016. Tia says this
tentative approval is conditioned on his showing he has been
accepted in appropriate housing and agreeing to comply with
all medical orders by his treating physicians. Tia alleges
the latter condition violates a state court order that
released him from being involuntarily medicated between 2013
and 2015. See generally, Compl., ECF No. 1. Tia
refers to Exhibits A and B as proof of these allegedly
improper parole conditions, but fails to attach such exhibits
to the Complaint.
28 U.S.C. §
prisoner may not bring a civil action or appeal a civil
judgment if he has:
on 3 or more prior occasions, while incarcerated . . .
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 [he] is under imminent danger of serious
28 U.S.C. § 1915(g).
1915(g) “should be used to deny a prisoner's IFP
status only when . . . the district court determines that the
[earlier] 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).
“[D]ocket records may be sufficient to show that a
prior dismissal satisfies at least one of the criteria under
§ 1915(g).” Id. at 1120.
accrued three “strikes” under § 1915(g), and
has been notified of these strikes. Tia may not proceed in a
civil action without concurrent payment of the civil filing
fee unless he plausibly alleges that he was in imminent
danger of serious physical injury based on Defendants'
actions when he filed suit.
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 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).
allegations that Matsuoka and Tua tentatively approved his
release on parole subject to his compliance with
physicians' medical orders does not show that Tia was in
imminent danger of serious physical injury when he commenced
this action. Tia has not been granted parole, thus, he is not
subject to any allegedly improper conditions of parole. Even
accepting that Tia's future release on parole may be
conditioned upon his compliance with physicians' orders
to take prescribed medication does not show that Tia is or
will be placed in imminent danger of serious physical injury
without more concrete allegations.