United States District Court, D. Hawaii
PETER R. TIA, #A1013142, Plaintiff,
HEAD OF THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, CHIEF JUDGE THOMAS DOE, CHIEF JUDGE CANBY DOE, CHIEF JUDGE MURGUIA DOE, HAWAII PAROLING AUTHORITY, BERT Y. MATSUOKA, CHRIS McKEON, JOHN KNIGHT, CORRECTIONS CORPORATION OF AMERICA, HALAWA CORRECTIONAL FACILITY, WARDEN SCOTT O. HARRINGTON, CITY AND COUNTY OF HONOLULU MAYOR DOE, CITY OF SAN FRANCISCO CA MAYOR DOE, HAWAII DEP'T OF PUBLIC SAFETY, NOLAN ESPINDA, Defendants.
ORDER VACATING DEFICIENCY ORDER; DENYING IMPLIED
REQUEST TO PROCEED IN FORMA PAUPERIS; AND DISMISSING ACTION
PURSUANT TO 28 U.S.C. § 1915(g)
Gillmor United States District Judge
the court is pro se Plaintiff Peter R. Tia's prisoner
civil rights Complaint. ECF No. 1. Although Tia failed to
submit an Application to Proceed In Forma Pauperis
(“IFP”) concurrently with his Complaint, he has
submitted current IFP applications in Civ. No. 17-00284
LEK-RLP, ECF No. 5 (dated June 19, 2017), and Civ. No.
17-00312 DKW-KSC, ECF No. 2 (dated Jun. 26, 2017). The Court
will considers these requests to proceed IFP as implied
requests to do so herein.
alleges Defendants, federal appellate court judges, state
prison and parole officials, private prison officials, and
other inmates, conspired against him to obstruct justice in
nine appellate cases that Tia filed in the United States
Court of Appeals for the Ninth Circuit. For the following
reasons, the Deficiency Order, ECF No. 3, is VACATED,
Tia's implied request to proceed IFP is DENIED, and this
action is DISMISSED without prejudice.
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 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 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
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).
accrued three “strikes” under § 1915(g),
been notified of these strikes, and 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 when he filed suit.
alleges no facts showing that he was in imminent danger of
serious physical injury when he commenced this action.
Rather, Tia alleges Defendants conspired to obstruct justice
in his appellate actions. This claim is implausible, legally
frivolous, and fails to show that Tia was in imminent danger
of serious physical injury when he commenced this case. Tia
may not proceed without concurrent payment of the filing fee
in this action.
June 27, 2017 Deficiency Order is VACATED. Tia's implied
request to proceed In Forma Pauperis is DENIED, and this
action is DISMISSED without prejudice. Tia may refile these
claims in a new action with concurrent payment of the civil
filing fee. The Clerk of Court is DIRECTED to close the case
and note this dismissal is pursuant to 28 U.S.C. §