Electronically Filed
Supreme Court
SCPW-12-0001016
10-JAN-2013
09:31 AM
SCPW-12-0001016
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
MICHAEL C. TIERNEY, Petitioner,
vs.
TED SAKAI, INTERIM DIRECTOR, DEPARTMENT OF PUBLIC SAFETY, STATE
OF HAWAI#I; SHARI KIMOTO; and JEANETTE BALTERO, Respondents.
ORIGINAL PROCEEDING
ORDER DENYING PETITION FOR WRIT OF MANDAMUS
(By: Recktenwald, C.J., Nakayama, McKenna, and Pollack, JJ.,
and Acoba, J. dissenting)
Petitioner Michael C. Tierney submitted a petition for
a writ of mandamus, which was filed on November 16, 2012.
Petitioner alleges that the wardens at the Saguaro Correctional
Center in Eloy, Arizona have denied him access to the courts by
“refusing to mail his legal mail [and] provide pens, paper,
envelopes, postage[,] and phone calls to his attorney and [the]
courts.” Based upon our review of the petition, the documents
attached thereto and submitted in support thereof, and the
record, it appears that petitioner’s claim of lack of access to
legal resources and materials is not substantiated in light of
the eight matters that he recently filed in this court --
(1) Tierney v. Sheriff for the State of Hawai#i, SCPW-12-0000978
(filed November 2, 2012); (2) Tierney v. District Court of the
First Circuit, Honolulu Division, SCPW-12-0000979 (filed November
2, 2012); (3) Tierney v. Perkins, SCPW-12-0001013 (filed November
16, 2012); (4) Tierney v. Hironaka, SCPW-12-0001014 (filed
November 16, 2012); (5) Tierney v. Matsuoka et al., SCPW-12-
0001015 (filed November 16, 2012); (6) Tierney v. Sakai, SCPW-12-
0001116 (filed December 27, 2012); (7) Tierney v. Matsuoka, SCPW-
XX-XXXXXXX (filed December 27, 2012) and (8) Tierney v. Sakai,
SCPW-12-0000831 (filed December 27, 2012). See Lewis v. Casey,
518 U.S. 343, 349-51 (1996) (to state a viable constitutional
claim of interference with access to the courts, the inmate must
demonstrate that he or she suffered an actual injury in the
pursuit of a nonfrivolous legal claim as a result of the alleged
shortcomings in access to legal resources and materials); Shaw v.
Murphy, 532 U.S. 223, 231 (2001). Petitioner, therefore, is not
entitled to mandamus relief. See Kema v. Gaddis, 91 Hawai#i 200,
204, 982 P.2d 334, 338 (1999) (a writ of mandamus is an
extraordinary remedy that will not issue unless the petitioner
demonstrates a clear and indisputable right to relief and a lack
of alternative means to redress adequately the alleged wrong or
obtain the requested action). Accordingly,
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IT IS HEREBY ORDERED that the petition for a writ of
mandamus is denied.
DATED: Honolulu, Hawai#i, January 10, 2013.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
DISSENT BY ACOBA, J.
If Petitioner, imprisoned in Arizona, has been denied
or hampered in obtaining paper, pens, envelopes, and postage or
refused communications with his attorney because of disputed
questions of indigency, he will have been deprived of the most
fundamental avenues of access to the courts in Hawai#i. I would
not speculate about reasons for denying the petition but would
require the Respondents to file an answer to the Petition.
/s/ Simeon R. Acoba, Jr.
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