United States District Court, D. Hawaii
ORDER DENYING IN FORMA PAUPERIS STATUS; DISMISSING
ACTION; AND VACATING DEFICIENCY ORDER
A. Otake United States District Judge
the court is pro se prisoner Francis Grandinetti's latest
pleading and attached exhibits, filed on June 7, 2019. ECF
No. 1. Grandinetti labels this pleading “2019
Complaint: Federal Contractor Lawsuit against CCA and CCV, et
al., ” “Habeas Corpus; Federal-Detention, IAD,
and Custody.” “SHIP programming, Gang/STG
programs, LTAS/Ad Seg Custody; write-ups for refusal to
participate therefor.” Id. The pleading lacks
any explanation for the basis of this suit, although its
exhibits suggests that Grandinetti refused to attend SHIP or
other programs that may qualify him for parole and that he
refused a cell mate.
attaches a blank District of Hawaii Application to Proceed In
Forma Pauperis By A Prisoner form (“IFP
Application”), and other blank forms referring to the
release of funds and request for his inmate account balances.
Id. at PageID #42-44.
extent Grandinetti is asserting a petition for writ of habeas
corpus challenging his conviction, sentence, or continued
incarceration, his Petition is DISMISSED. Grandinetti has
previously challenged his conviction and sentence. See
Grandinetti v. State, Civ. No. 05-00254 DAE-LEK
(dismissing habeas petition with prejudice as time-barred).
This court thus lacks jurisdiction to consider
Grandinetti's habeas claims until the appellate court has
authorized him to proceed with a second or successive
petition for writ of habeas corpus. See Burton v.
Stewart, 549 U.S. 147, 152 (2007); see also, 28
U.S.C. § 2254(b)(3)(A). Further, nothing in this
pleading shows that Grandinetti challenges the revocation of
parole or probation, or makes any other claims “that
fall within the core of habeas.” See Nettles v.
Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (discussing
when a habeas claim is properly brought and when a civil
rights claim is raised) (citing Wilkinson v. Dotson,
544 U.S. 74, 81-82 (2005)). It appears that he is again
generally complaining about his transfer to Arizona and,
perhaps, the conditions of his confinement there.
extent Grandinetti asserts a cause of action under 42 U.S.C.
§ 1983, he has accrued three strikes pursuant to 28
U.S.C. § 1915(g),  and he may not proceed without
concurrent payment of the filing fee unless his pleadings
plausibly allege that he is in imminent danger of serious
physical injury. See Andrews v. Cervantes, 493 F.3d
1047, 1053, 1055 (9th Cir. 2007) (“Andrews
II”). Nothing within Grandinetti's pleading
shows or even suggests that he was in imminent danger of
serious physical injury when he filed this action or that
there is a continuing practice that injured him in the past
that poses an “ongoing danger.” Id. at
1056. If Grandinetti was in such danger, of course, venue for
such a claim would be in Arizona, where he is incarcerated,
not in the District of Hawaii. See 28 U.S.C. §
action is therefore DISMISSED without prejudice pursuant to
28 U.S.C. § 1915(g), and Grandinetti's request to
proceed in forma pauperis is DENIED. Grandinetti may refile
any civil rights claims that he asserts herein in a new
action with concurrent payment of the filing fee. He must
seek certification from the Ninth Circuit Court of Appeals
before proceeding with habeas claims challenging his
conviction or sentence.
June 7, 2019 Deficiency Order, ECF No. 2, is VACATED.
Clerk is DIRECTED to terminate this case. The Court will take
no further action beyond processing a notice of appeal.
It again appears that Grandinetti
labeled this pleading ambiguously as seeking habeas relief in
part, to avoid the penalties imposed on his filings by §
1915(g). See Andrews v. King, 398 F.3d 1113,
1122-23, n.12 (9th Cir. 2005) (“Andrews
I”) (recognizing that some habeas petitions are
civil rights actions mislabeled as habeas petitions to avoid
§ 1915(g)'s penalties).
See, e.g., Grandinetti v.
FTC Seg. Unit Staff, 426 Fed.Appx. 576 (9th Cir. 2011);
Grandinetti v. Abercrombie, Civ. No. 15-00007
LEK-RLP (D. Haw. 2015); Grandinetti v. Stampfle,