(PC) Chatman v. Diaz et al

Filing 7

ORDER DIRECTING Clerk of the Court to Assign a District Judge; FINDINGS and RECOMMENDATIONS to Deny Plaintiff's #5 Motion to Proceed In Forma Pauperis re #1 Prisoner Civil Rights Complaint, signed by Magistrate Judge Sheila K. Oberto on 7/15/2020. Referred to Unassigned DJ. Objections to F&R due within 14 days. (Rivera, O)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

LARRY ALONZO CHATMAN,

12

Plaintiff,

13

v.

14

R. DIAZ, et al.,

15

Case No. 1:20-cv-00918-SKO (PC)
FINDINGS AND RECOMMENDATIONS
TO DENY PLAINTIFF’S MOTION TO
PROCEED IN FORMA PAUPERIS
(Doc. 5)

Defendants.

14-DAY DEADLINE
Clerk of the Court to Assign a District Judge

16
17

Before the Court is Plaintiff’s application to proceed in forma pauperis pursuant to 28

18

U.S.C. § 1915. (Doc. 5.) Because Plaintiff has accrued more than three “strikes” under section

19

1915(g) and fails to show that he is in imminent danger of serious physical injury, the Court

20

recommends that his application be denied.

21

I.

THREE-STRIKES PROVISION OF 28 U.S.C. § 1915

22

28 U.S.C. § 1915 governs in forma pauperis proceedings. The statute provides, “[i]n no

23

event shall a prisoner bring a civil action … under this section if the prisoner has, on 3 or more

24

prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a

25

court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails

26

to state a claim upon which relief may be granted, unless the prisoner is under imminent danger

27

of serious physical injury.” 28 U.S.C. § 1915(g).

28

///

1

II.

DISCUSSION
The Court takes judicial notice of four of Plaintiff’s prior actions that were dismissed

2
3

because they were frivolous or failed to state a claim on which relief can be granted1: (1)

4

Chatman v. Dillion, et al., No. 2:04-cv-02654-FCD-DAD (E.D. Cal.) (dismissed on August 19,

5

2005, as frivolous and for failure to state a claim); (2) Chatman v. Bradford, et al., No. 2:05-cv-

6

01571-FCD-GGH (E.D. Cal.) (dismissed on August 24, 2006, for failure to file an amended

7

complaint, after the court dismissed the original complaint for failure to state a claim 2); (3)

8

Chatman v. Solano County Jail, et al., No. 2:04-cv-02655-MCE-GGH (E.D. Cal) (dismissed on

9

August 30, 2006, for failure to file an amended complaint, after the court dismissed the original

10

complaint for failure to state a claim); and, (4) Chatman v. Dillion, et al., No. 2:19-cv-02171-

11

WBS-AC (E.D. Cal.) (dismissed without prejudice3 on January 29, 2020, for failure to file an

12

amended complaint, after the court dismissed the original complaint for failure to state a claim).

13

All of these cases were dismissed before Plaintiff initiated the current action on July 1, 2020.

14

Plaintiff is therefore precluded from proceeding in forma pauperis unless, at the time he filed his

15

complaint, he was under imminent danger of serious physical injury. See Andrews v. Cervantes,

16

493 F.3d 1047, 1052-53 (9th Cir. 2007).
Plaintiff alleges that prison officials deprived him of “good conduct credits,” thereby

17
18

subjecting him to incarceration past the date he should be released. (See Doc. 1 at 3.) Plaintiff

19

sues the director of the California Department of Corrections and Rehabilitation; the warden of

20

Substance Abuse Treatment Facility and State Prison, Corcoran (SATF); and two records analysts

21

at SATF. (Id. at 2.) Plaintiff does not provide any factual allegations that show that he was in

22

imminent danger of physical injury at the time he filed suit.

23

///

24

///

25
1

26
27
28

The Court may take judicial notice of court records. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).

When a “court dismisses a complaint on the ground that it fails to state a claim, … the court grants leave to amend,
and … the plaintiff then fails to file an amended complaint, the dismissal counts as a strike.” Harris v. Mangum, 863
F.3d 1133, 1143 (9th Cir. 2017).
2

“A dismissal of a suit for failure to state a claim counts as a strike, whether or not with prejudice.” Lomax v. OrtizMarquez, 140 S. Ct. 1721, 1727 (2020).
3

2

1

III.

2
3

CONCLUSION AND RECOMMENDATIONS
Based on the foregoing, the Court DIRECTS the Clerk of the Court to assign a district

judge to this action and RECOMMENDS that:

4

1. Plaintiff’s motion to proceed in forma pauperis (Doc. 5) be DENIED; and,

5

2. This action be DISMISSED without prejudice to refiling upon prepayment of the

6

filing fee.

7

These Findings and Recommendations will be submitted to the United States District

8

Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

9

of the date of service of these Findings and Recommendations, Plaintiff may file written

10

objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s

11

Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time

12

may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

13

2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

14
15
16
17

IT IS SO ORDERED.
Dated:

July 15, 2020

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

18
19
20
21
22
23
24
25
26
27
28
3

.