United States District Court, D. Hawaii
ORDER: (1) VACATING DEFICIENCY ORDER; (2) DENYING
INJUNCTIVE RELIEF; AND (3) DISMISSING ACTION PURSUANT TO 28
U.S.C. § 1915(G)
Derrick K. Watson United States District Judge.
the court is pro se Plaintiff Francis Grandinetti's civil
rights Complaint and “TRO Application.” ECF No.
1. Grandinetti is incarcerated at the Saguaro Correctional
Center (“SCC”), located in Eloy, Arizona. He
names Hawaii Department of Public Safety (“DPS”)
officials and employees, the Honololu Police Department and
its former Chief Louis Kealoha, the Hawaii Attorney General,
and unidentified individuals who are apparently employed at
SCC as Defendants. Grandinetti complains that there was an
“erroneous ‘Municipal Court' hearing”
in Arizona on April 12, 2017, and that he is (or was)
“‘too injured' for any court appearances or
parole hearings.” Id., PageID #1. He says a
“hospital exam, past- due, is more appropriate and of
merit.” Id. He provides no other details in
support of his claims or request for injunctive relief.
Grandinetti did not pay the $400.00 filing fee or file an
Application to Proceed In Forma Pauperis (“IFP”)
when he filed this action, the court issued an automatic
Deficiency Order directing him to do so within twenty-eight
days. ECF No. 3. Based on the following, the Court vacates
the Deficiency Order, denies Grandinetti's request for
injunctive relief, and dismisses this action.
28 U.S.C. § 1915(g)
prisoner may not bring a civil action or appeal 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” as
frivolous, malicious, or for failure to state a claim, unless
he or she “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 v. King, 398 F.3d 1113, 1121 (9th Cir.
2005). “[D]istrict 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. at 1120.
imminent danger exception only “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).
has accrued at least three strikes pursuant to 28 U.S.C.
§ 1915(g),  has been notified of these strikes, and
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. He alleges no facts, makes
no claims, and provides no explanation of how any Defendant
violated his rights, however, nor does he offer evidence or
even claims of imminent danger of serious physical injury.
to Grandinetti's Complaint and Motion are seventeen
documents styled as “Medical Requests, ” several
letters, and other random information. The Court has reviewed
these exhibits to determine whether they plausibly support an
allegation that Grandinetti faced imminent danger of serious
physical injury when he submitted this Complaint. They do
not. These documents discuss Grandinetti's past injuries,
note what he has or has not eaten, detail when he attended
recreation, and offer other mundane facts of his life at SCC.
One document shows that Grandinetti refused a physical or
mental health examination before he was allegedly supposed to
appear at the Arizona Municipal Court as a witness,
contradicting his vague claim that he required a hospital
examination before he attended this hearing. See
Compl., ECF No. 1, PageId. #8. Grandinetti has not
made a credible, coherent, or plausible allegation that he is
in imminent danger of serious physical injury.
MOTION FOR INJUNCTIVE RELIEF
standard for deciding requests for temporary restraining
orders or preliminary injunctions is the same and is well
established. See Fed. R. Civ. P. 65. “A
preliminary injunction is an extraordinary remedy never
awarded as of right.” Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted).
A plaintiff seeking a temporary restraining order “must
establish that he is likely to succeed on the merits, that he
is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public
interest.” Id. at 20; accord Sierra Forest
Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009). In
cases brought by prisoners involving conditions of
confinement, injunctive relief “must be narrowly drawn,
extend no further than necessary to correct the harm the
court finds requires preliminary relief, and be the least
intrusive means necessary to correct the harm.” 18
U.S.C. § 3626(a)(2).
provides no basis for issuing injunctive relief. Neither his
pleading, Motion, nor exhibits show serious questions going
to the merits of any claim, or that the balance of hardships
tips sharply towards issuance of a preliminary injunction, or
“that there is a likelihood of irreparable injury and
that the injunction is in the public interest.”
Alliance for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1134-35 (9th Cir. 2011) (citing Winter test).
does not plausibly allege that he is in imminent danger of
serious physical injury and he may not proceed IFP in this
action. Accordingly, the Deficiency Order, ECF No. 3, is
VACATED and this action is DISMISSED without prejudice to his
refiling these claims in a new action with concurrent payment
of the civil filing fee. To the extent Grandinetti seeks
injunctive relief, his request is DENIED. Any other pending
motions are DENIED ...