United States District Court, D. Hawaii
ORDER VACATING JUDGMENT; DENYING IN FORMA PAUPERIS
APPLICATION AND MOTION FOR ENLARGEMENT OF TIME; AND
E. Kobayashi United States District Judge.
the court is pro se Plaintiff Francis Grandinetti's (1)
Motion for an Enlargement of Time; (2) Application to Proceed
In Forma Pauperis By A Prisoner (IFP Application); and (3)
Notice of Appeal (NOA). See ECF Nos. 6-8.
Grandinetti is a Hawaii state prisoner incarcerated at the
Saguaro Correctional Center (“SCC”) in Eloy,
Arizona. He seeks relief under 28 U.S.C. §§ 2241,
2254, 1915(g) and the Federal Rules of Civil
following reasons, the November 7, 2018 Dismissal Order and
judgment are VACATED. To the extent Grandinetti brings this
action as a Petition for Writ of Habeas Corpus, it is DENIED,
as is any request for a certificate of appealability. To the
extent Grandinetti's pleading is meant as a civil rights
Complaint, it is DISMISSED with prejudice. Grandinetti's
Motion for Enlargement of Time and IFP Application are
filed this action on October 1, 2018. ECF No. 1. He claims
that he received notice of a parole hearing from the Hawaii
Paroling Authority (HPA) to be held at SCC between September
and November 2018. Grandinetti says that he is too injured to
accept the notice or attend a parole hearing, however. He
attaches six pages of exhibits to his pleading, including a
medical request demanding “‘Medical Parole'
only, ” a consent to release his mental health
evaluations to the HPA, a medical examination report dated
September 29, 1988, and a blank HPA notice of
hearing and parole plan. Id., PageID #2-6.
October 3, 2018, the court issued a Deficiency Order,
directing Grandinetti to submit an IFP Application or the
filing fee within twenty-eight days, or on or before October
31, 2018. Ord., ECF No. 2.
October 9, 2018, Grandinetti filed a second action,
Grandinetti v. State HPA, No. 1:18-cv-00388-JMS-KJM
(D. Haw.), asserting similar claims to those asserted herein.
That action was docketed as a petition for writ of habeas
corpus. The court issued a Deficiency Order. ECF No. 2.
October 16, 2018, Grandinetti filed a prisoner civil rights
action, Grandinetti v. Hegmann, No.
1:18-cv-00396-DKW-RLP (D. Haw.). It is unclear what claims
for relief Grandinetti asserts in this suit. The court again
issued a Deficiency Order. ECF Nos. 1, 2.
October 29, 2018, Grandinetti filed a document in No.
1:18-cv-00388, complaining that SCC staff had withheld a
letter to him from the Ombudsman for several days. ECF No. 3
(dated Oct. 23, 2018).
November 6, 2018, Grandinetti filed a “Motion, Delayed
or Hidden USPS Mail, ” in the present case. ECF No. 3
(accepted for mailing on Oct. 31, 2018). Grandinetti alleged
that his mail had been withheld for three weeks in October,
although exhibits to the Motion show that five of his
outgoing letters were mailed on or before October 25, 2018.
Id., PageID #13. He also complained that eleven
incoming letters were
November 7, 2018, this Court dismissed this action for
Grandinetti's failure to timely comply with the October
3, 2018 Deficiency Order, despite evidence in the court's
records showing that he was sending and receiving mail during
the relevant time period. See Entering Order, ECF
No. 4. Later that day, Grandinetti filed a Motion for
Enlargement of Time, seeking an extension of time to pay or
file an IFP Application. ECF No. 6 (accepted for mailing on
Oct. 31, 2018). He claimed that Defendants hid his incoming
mail between September 23 and October 23, 2018.
November 8, 2018, Grandinetti filed an IFP Application, ECF
No. 7 (accepted for mailing on Oct. 31, 2018), and a
premature NOA, ECF No. 8 (accepted for mailing on Nov. 1,
PRISON MAILBOX RULE
the “mailbox rule, ” a pleading filed by a pro se
prisoner is deemed filed on the date the prisoner delivered
it to prison authorities for mailing, not the date on which
the pleading is received or filed by the court. Houston
v. Lack, 487 U.S. 266, 270 (1988); see also Douglas
v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009)
(“[T]he Houston mailbox rule applies to §
1983 suits filed by pro se prisoners.”); Roberts v.
Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010)
(“When a prisoner gives prison authorities a ...