                                                      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,


                                  2
          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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