United States District Court, D. Hawaii
BILLY G. ASEMANI, #339096, Plaintiff,
THE ISLAMIC REPUBLIC OF IRAN, Defendants.
A. Otake, United States District Judge.
the court is pro se prisoner Billy G. Asemani's pleading
brought pursuant to the Foreign Sovereign Immunities Act
(“FSIA”), 28 U.S.C. § 1602, et seq.. ECF No.
1. Asemani seeks to enforce a state court default judgment
that he obtained against the Islamic Republic of Iran. He
also asks for an extension of time to comply with the
September 3, 2019 Deficiency Order directing him to submit
either an in forma pauperis application or the civil filing
fee. ECF No. 3.
following reasons, the Deficiency Order is VACATED, the
Motion for an Extension of Time to Respond to the Court's
Deficiency Order is DENIED, this action is DISMISSED without
prejudice pursuant to 28 U.S.C. § 1915(g).
U.S.C. § 1915(g)
Prison Litigation Reform Act (“PLRA”) provides
that a prisoner may not bring a civil action or appeal a
civil judgment under 28 U.S.C. § 1915 “if the
prisoner 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
on the grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g).
concedes that he has had three or more prior prisoner actions
dismissed by a federal court on the grounds that they were
frivolous, malicious, or failed to state a claim on which
relief may be granted. See Mot., ECF No. 3, at PageID #1;
see also Asemani v. U.S. Citizenship & Immigration
Servs., 797 F.3d 1069, 1073 (D.C. Cir. 2015)
(“While incarcerated, at least three of [Asemani's]
suits have been dismissed on grounds qualifying as
“strikes” for purposes of the three-strikes
rule.”). Thus, Asemani may not proceed in this action
without concurrent payment of the complete civil filing fee,
unless his pleadings show that he was in imminent danger of
serious physical injury when he brought this action. See
Andrews v. Cervantes, 493 F.3d 1047, 1053, 1055 (9th
is seeking to enforce a default judgment recorded in the
Circuit Court for Allegany County, Maryland on July 22, 2016.
See ECF No. 1-1, at PageID #22. Nothing within Asemani's
Complaint or exhibits supports a finding that he is or 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.”
Andrews, 493 F.3d at 1056. Although Asemani claims that he
was tortured by the Iranian government, he states that he has
been seeking redress from Iran for this for more than ten
years. Asemani is now incarcerated in Maryland and he alleges
no nexus between any actions of the Republic of Iran and his
current confinement that suggest he is presently in danger.
See Pettus v. Morgenthau, 554 F.3d 293, 298 (2d Cir. 2009)
(holding that “the complaint of a three-strikes
litigant must reveal a nexus between the imminent danger it
alleges and the claims it asserts, in order for the litigant
to qualify for the ‘imminent danger' exception of
§ 1915(g).”); cf., Williams v. Paramo, 775 F.3d
1182, 1190 (9th Cir. 2015) (recognizing that the imminent
danger alleged must be sufficiently related to a claim in the
complaint for the imminent danger exception to apply); see
also Asemani v. Republic of Iran, 2019 WL 366482, at *2 (N.D.
Cal. Jan. 3, 2019) (“[T]o qualify for the imminent
danger exception, plaintiff must show that: (1) the imminent
danger of serious physical injury alleged is fairly traceable
to unlawful conduct asserted in the complaint; and (2) a
favorable judicial outcome would redress that injury”).
Asemani may not proceed in forma pauperis in this action.
Motion for Extension of Time
that he may not proceed in forma pauperis, Asemani seeks an
extension of time, until November 1, 2019, to
“respond” to the Deficiency Order. To be clear,
Asemani does not say that he will submit the $350.00 filing
fee and the $50.00 administrative fee on November 1, 2019.
His exhibit shows that he does not have sufficient funds to
do so. See Ex. A, ECF No. 1-1, at PageID #36. Rather, in
light of Asemani's extensive history of unsuccessful
filings against the Republic of Iran and its officials in the
federal courts,  it appears that he is simply attempting to
postpone the inevitable dismissal of this action by moving
for an extension of time.
parties instituting any civil action, suit or proceeding in a
district court of the United States, except an application
for writ of habeas corpus, must pay a filing fee. See 28
U.S.C. § 1914(a). An action may proceed despite a
plaintiff's failure to prepay the entire fee only if he
is granted leave to proceed IFP pursuant to 28 U.S.C. §
1915(a). See Andrews, 493 F.3d at 1051. Allowing Asemani to
continue in this case without concurrent payment of the
filing fee, particularly when he admits that he is barred
from proceeding in forma pauperis by § 1915(g), defeats
the PLRA's objective “of reducing frivolous
prisoner litigation in federal court.” Tierney v.
Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).
Asemani's Motion for an Extension of Time is DENIED.
July 1, 2019 Deficiency Order, ECF No. 2, is VACATED.
Asemani's Motion For an Extension of Time, ...