Chatman v. Comfort Inn et al

Filing 3

ORDER: The Court hereby: (1) Denies Plaintiff's Motion to Proceed IFP (ECF No. 2 ) as barred by 28 U.S.C. § 1915(g); (2) Dismisses this civil action sua sponte without prejudice for failing to prepay the $400 civil and administrative filing fees required by 28 U.S.C. § 1914(a). The Clerk shall close the file. Signed by Judge William Q. Hayes on 05/24/2018. (All non-registered users served via U.S. Mail Service)(ajs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ERIC CHATMAN,
CDCR #BD-5474,

Case No.: 3:18-cv-1020-WQH-PCL
ORDER:

Plaintiff,

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v.

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(1) DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AS BARRED BY 28 U.S.C. § 1915(g)
[ECF Doc. No. 2]; AND

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COMFORT INN; COMFORT
CORPORATION,

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(2) DISMISSING CIVIL ACTION
WITHOUT PREJUDICE FOR
FAILURE TO PAY FILING FEE
REQUIRED BY 28 U.S.C. § 1914(a);

Defendants.

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Eric Chatman (“Plaintiff”), a state inmate currently incarcerated at the California

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State Prison located in Corcoran, California, has filed a civil action. (ECF Doc. No. 1.)

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Plaintiff has also filed a Motion to Proceed In Forma Pauperis (“IFP”) (ECF Doc. No. 2).

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I.

Motion to Proceed IFP

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“All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cty.

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Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). “Prisoners” like Plaintiff, however,

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“face an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount

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of a filing fee,” in “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), Williams v.

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Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act (“PLRA”)

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amended section 1915 to preclude the privilege to proceed IFP:

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. . . if [a] 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 can be granted, unless the prisoner is under
imminent danger of serious physical injury.

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28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’

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provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) (hereafter

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“Andrews”).

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“Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.”

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Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter

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“Cervantes”) (under the PLRA, “prisoners who have repeatedly brought unsuccessful suits

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may entirely be barred from IFP status under the three strikes rule[.]”). The objective of

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the PLRA is to further “the congressional goal of reducing frivolous prisoner litigation in

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federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). “Section 1915(g)’s

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cap on prior dismissed claims applies to claims dismissed both before and after the statute’s

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effective date.” Id.

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“Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which

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were dismissed on the ground that they were frivolous, malicious, or fail to state a claim,”

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Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court

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styles such dismissal as a denial of the prisoner’s application to file the action without

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prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008).

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Once a prisoner has accumulated three strikes, he is prohibited by section 1915(g) from

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pursuing any other IFP action in federal court unless he can show he is facing “imminent

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danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051-

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52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation

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that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”).

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II.

Application to Plaintiff

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As an initial matter, the Court has carefully reviewed Plaintiff’s Complaint and has

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ascertained that it does not contain “plausible allegations” which suggest he “faced

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‘imminent danger of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at

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1055 (quoting 28 U.S.C. § 1915(g)).

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A court “‘may take notice of proceedings in other courts, both within and without

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the federal judicial system, if those proceedings have a direct relation to matters at issue.’”

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Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc.,

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285 F.3d 801, 803 n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria

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Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).

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Thus, this Court takes judicial notice that Plaintiff, while incarcerated, has brought

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at least three prior civil actions which have been dismissed on the grounds that they were

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frivolous, malicious, or failed to state a claim upon which relief may be granted. See 28

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U.S.C. § 1915(g). They are:

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1)

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JLB (S.D. Cal. Nov. 8, 2017) (Order Dismissing Action for failing to state a claim

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and without leave to amend) (strike one);

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2)

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(S.D. Cal. Nov. 21, 2017) (Order Dismissing Action for failing to state a claim and

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without leave to amend) (strike two);

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3)

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(S.D. Cal. Feb. 15, 2018) (Order Dismissing Action for failing to state a claim and

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without leave to amend) (strike three);

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4)

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NLS (S.D. Cal. Feb. 20, 2018) (Order Dismissing Action as frivolous and without

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Chatman v. Toyota of Escondido, et al., Civil Case No. 3:17-cv-01853-BAS-

Chatman v. Cush Acura, et al., Civil Case No. 3:17-cv-01852-WQH-JLB)

Chatman v. Super 8 Motel, et al., Civil Case No. 3:17-cv-02517-DMS-JMA

Chatman v. Super 8 Motel Co., et al., Civil Case No. 3:18-cv-00213-BAS-

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3:18-cv-1020-WQH-PCL

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leave to amend) (strike four).

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Accordingly, because Plaintiff has, while incarcerated, accumulated at least the three

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“strikes” permitted pursuant to § 1915(g), and he fails to make a “plausible allegation” that

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he faced imminent danger of serious physical injury at the time he filed his Complaint, he

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is not entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at

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1055; Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. § 1915(g) “does not prevent all

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prisoners from accessing the courts; it only precludes prisoners with a history of abusing

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the legal system from continuing to abuse it while enjoying IFP status”); see also Franklin

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v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is

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itself a matter of privilege and not right.”).

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III.

Conclusion and Order

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For the reasons set forth above, the Court hereby:

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(1)

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DENIES Plaintiff’s Motion to Proceed IFP (ECF Doc. No. 2) as barred by 28

U.S.C. § 1915(g);
(2)

DISMISSES this civil action sua sponte without prejudice for failing to prepay

the $400 civil and administrative filing fees required by 28 U.S.C. § 1914(a).

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The Clerk shall close the file.

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IT IS SO ORDERED.

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Dated: May 24, 2018

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