United States District Court, D. Hawaii
ROLAND I. KEHANO, SR., #A0134841, Plaintiff,
SCOTT HARRINGTON, et al., Defendants.
ORDER DENYING OBJECTIONS
OKI MOLLWAY, UNITED STATES DISTRICT JUDGE
February 6, 2019, this court dismissed this action without
prejudice to Plaintiff's refiling with concurrent payment
of the filing fee, and warned Plaintiff that the court would
take no action on any documents that he filed without such
payment. See Dismissal Order, ECF No. 3, PageID #14.
The court found that Plaintiff, a prisoner proceeding pro
se, has accrued three “strikes” pursuant to
28 U.S.C. § 1915(g),  did not allege that he was in imminent
danger of serious physical injury when he commenced this
action and therefore cannot proceed without payment of the
civil filing fee. Id.; see also Andrews v.
Cervantes, 493 F.3d 1047, 1053, 1055 (9th Cir. 2007).
the court are Plaintiff's serial “Objections”
to the dismissal of this action, which are jointly considered
and construed as a Motion for Reconsideration. See
ECF Nos. 5-8. Plaintiff's Objections raise numerous
issues. For instance, Plaintiff refers to a state
post-conviction petition, S.P.P. No. 19-1-0002(2), and says
that State and federal officials have colluded to deny him
due process. Plaintiff discusses his son's death in 2015,
allegedly due to the negligence of Kaiser Permanente or Maui
Memorial Hospital staff and deliberate indifference of prison
officials, which is the basis for this suit. Plaintiff states
that he was prevented from attending a recent hearing before
the Hawaii Medical Inquiry and Conciliation Panel (MICP), in
MICP No. 2018-060, regarding his son's death, and was
later disciplined because he took a pen from a prison staff
member's desk while waiting to connect with the MICP
to the dismissal of this action, Plaintiff says that,
although he “was not in imminent danger of serious
physical injury” when he brought this action, he
suffers from unidentified “mental and life threatening
medical issues” relating to his son's 2015 death
and his inability to attend the MICP hearing. Plaintiff also
alleges that he “corrected all 4 strikes in the 9th
Cir. Court of Appeals, ” on or about Feb. 16, 2017. ECF
No. 8, PageID #40, 42.
motion for reconsideration should not be granted, absent
highly unusual circumstances, unless the district court is
presented with newly discovered evidence, committed clear
error, or if there is an intervening change in the
controlling law, ” and it “may not be used to
raise arguments or present evidence for the first time when
they could reasonably have been raised earlier in the
litigation.” Marlyn Nutraceuticals, Inc.
v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th
Cir. 2009) (internal quotations marks, citations, and
Plaintiff admits that he was not in imminent danger of
serious physical injury when he brought this action. The
court cannot reasonably infer that Plaintiff was in imminent,
physical jeopardy due to his son's alleged wrongful death
in 2015, his inability to attend the MICP hearing because he
was incarcerated, or his disciplinary sanction for taking a
the court has carefully reviewed the federal court's
judicial case database for evidence to support
Plaintiff's allegation that he has
“corrected” his strikes. This court remains
convinced that Plaintiff has accrued at least four strikes
pursuant to 28 U.S.C. § 1915(g). See supra,
n.1. The “February 16, 2017” Ninth Circuit
decision to which Plaintiff apparently refers is an appellate
order denying Plaintiff's application to file a second or
successive state petition for writ of habeas corpus in
Kehano v. Harrington, App. No. 16-73717 (9th Cir.
2016). There are no decisions showing that his strikes have
may not proceed in forma pauperis in this action,
and there is no persuasive reason to reconsider the February
6, 2019 Dismissal Order. Plaintiff's Objections, ECF Nos.
5-8, are overruled. The court will take no further action on
any documents filed herein, regardless of whether Plaintiff
submits a filing fee, beyond processing a notice of appeal.
See, e.g., Kehano v.
Pioneer Mill Co., No. 1:12-cv-00448 (D. Haw. Dec. 6,
2012) (dismissing for failure to state a claim), App. No.
16-15129 (9th Cir. Mar. 8, 2016) (dismissed as untimely);
Kehanov. Espinda, No. 1:12-cv-00529 (D. Haw. Oct.
24, 2012) (dismissing for failure to state a claim) (no
appeal taken); Kehano v.State, No. 2:05-cv-02475 (D.
Ariz. Sept. 8, 2005) (dismissing for failure to state a
claim), aff'd, App. No.05-16908 (9th Cir. 2007);
Kehano v. State, No. 2:04-cv-00935 ...