Chatman v. Budweiser Corporation et al

Filing 11

ORDER: 1) Denying Motions to Proceed In Forma Pauperis and to Appoint Counsel as Barred by 28 U.S.C. § 1915(g) [ECF Nos. 2 , 3 ] and 2) Dismissing Civil Action Without Prejudice for Failure to Pay Filing Fee Required by 28 U.S.C. § 1914(a). The Court certifies that an IFP appeal from this Order would be frivolous and therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). The Clerk of Court is directed to enter judgment and close the file. Signed by Judge William Q. Hayes on 09/19/2018. (All non-registered users served via U.S. Mail Service)(ajs)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

ERIC CHATMAN,
CDCR #BD-5474,

Case No.: 3:18-cv-01289-WQH-PCL

13
14

ORDER:

Plaintiff,
vs.

1) DENYING MOTIONS TO
PROCEED IN FORMA PAUPERIS
AND TO APPOINT COUNSEL AS
BARRED BY 28 U.S.C. § 1915(g)
[ECF Nos. 2, 3]

15
16
17
18

BUDWEISER CORPORATION;
COORS CORPORATION;
MILLER LITE CORPORATION,

AND

Defendants.

19

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

20
21
22
23

Eric Chatman, a prisoner incarcerated at Salinas Valley State Prison in Soledad,

24

California, and proceeding pro se, has filed Complaint alleging personal injury, premises

25

liability, general negligence, and intentional tort claims against several beer companies.

26

See Compl., ECF No. 1. Chatman claims he was he was robbed and kidnapped in Las

27

Vegas sometime between 2005 and 2007 “all because of alcohol.” Id. at 6-7. He seeks

28

billions in “lump sum” damages and ownership interests in each corporation. Id. at 5.
1
3:18-cv-01289-WQH-PCL

1

Chatman did not pay the civil filing fee required by 28 U.S.C. § 1914(a) at the time

2

he submitted his Complaint; instead, he filed a Motion to Proceed In Forma Pauperis

3

(“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2), together with a Motion to Appoint

4

Counsel (ECF No. 3).1

5

I.

Motion to Proceed IFP

6

A.

7

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

Standard of Review

8

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

9

“face … additional hurdle[s].” Id. Specifically, in addition to requiring prisoners to “pay

10

the full amount of a filing fee,” in “monthly installments” or “increments” as provided by

11

28 U.S.C. § 1915(a)(3)(b), Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016);

12

Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform

13

Act (“PLRA”) precludes prisoners from proceeding IFP:

14

. . . 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.

15
16
17
18
19

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

20

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

21

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

22

Id. The objective of the PLRA is to further “the congressional goal of reducing frivolous

23

prisoner litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir.

24
25
26
27
28

1

Chatman includes more detailed allegations in a series of ex parte letters to the judges assigned to this
matter. See ECF Nos. 5, 7, 9. Because Chatman has violated S.D. Cal. Local Civil Rule 83.9, which
provides that “attorneys or parties to any action must refrain from writing letters to the judge,” he is
cautioned that “[p]ro se litigants must follow the same rules of procedure that govern other litigants.” King
v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, any additional ex parte letters he attempts to file
in this matter may be summarily rejected based on Local Rule 83.9.
2
3:18-cv-01289-WQH-PCL

1

1997). “[S]ection 1915(g)’s cap on prior dismissed claims applies to claims dismissed

2

both before and after the statute’s effective date.” Id. at 1311. “Strikes are prior cases or

3

appeals, brought while the plaintiff was a prisoner, which were dismissed on the ground

4

that they were frivolous, malicious, or failed to state a claim,” Andrews v. King, 398 F.3d

5

at 1116 n.1 (internal quotations omitted), “even if the district court styles such dismissal

6

as a denial of the prisoner’s application to file the action without prepayment of the full

7

filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). When courts “review a

8

dismissal to determine whether it counts as a strike, the style of the dismissal or the

9

procedural posture is immaterial. Instead, the central question is whether the dismissal

10

‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El-Shaddai v.

11

Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 F.3d 607,

12

615 (4th Cir. 2013)).

13

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

14

from pursuing any other IFP civil action or appeal in federal court unless he alleges he is

15

facing “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g).

16

B.

17

The Court has reviewed Chatman’s Complaint and finds that is contains no

18

“plausible allegations” to suggest he “faced ‘imminent danger of serious physical injury’

19

at the time of filing.” Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007)

20

(quoting 28 U.S.C. § 1915(g)). Instead, as described above, Chatman seeks to sue

21

Budweiser, Coors, and Miller Lite for injuries he claims to have suffered more than ten

22

years ago at the hands of unidentified “people [who] dr[a]nk irresponsibl[y].” See

23

Compl., ECF No. 1 at 5. These allegations are plainly frivolous and insufficient to

24

plausibly show ongoing or “imminent” danger of any serious physical injury. See In re

25

Gonzalez, 2008 WL 666465 at *2-3 (N.D. Cal. March 6, 2008) (finding prisoner with a

26

“delusional tale” of having a “special genetic structure,” and being “irradiated … by

27

radioactive smoke” by “government scientists,” did not plausibly allege “imminent

28

danger of serious physical injury.”); Holz v. McFadden, 2010 WL 3069745 at *3 (C.D.

Application to Chatman

3
3:18-cv-01289-WQH-PCL

1

Cal. May 21, 2010) (finding “imminent danger” exception to § 1915(g) inapplicable

2

where prisoner implausibly claimed the FBI and BOP were “going to kill him.”); Sierra

3

v. Woodford, 2010 WL 1657493 at *3 (E.D. Cal. April 23, 2010) (finding “long,

4

narrative, rambling statements regarding a cycle of violence, and vague references to

5

motives to harm” insufficient to show Plaintiff faced an “ongoing danger” as required by

6

Andrews v. Cervantes).

7

While Defendants typically carry the burden to show that a prisoner is not entitled

8

to proceed IFP, Andrews v. King, 398 F.3d at 1119, “in some instances, the district court

9

docket may be sufficient to show that a prior dismissal satisfies at least one on the criteria

10

under § 1915(g) and therefore counts as a strike.” Id. at 1120. That is the case here.

11

A court may take judicial notice of its own records. See Molus v. Swan, Civil Case

12

No. 3:05-cv-00452–MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing

13

United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v.

14

Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015). Courts also

15

“‘may take notice of proceedings in other courts, both within and without the federal

16

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

17

Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285

18

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

19

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

20

Thus, this Court takes judicial notice that Chatman, identified as CDCR Inmate

21

#BD-5474, has had four prior prisoner civil actions dismissed in this district alone on the

22

grounds that they were frivolous, malicious, or failed to state a claim upon which relief

23

may be granted. They are:

24

1)

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

25

JLB (S.D. Cal. Nov. 8, 2017) (Order Granting Motion to Proceed IFP and Dismissing

26

Civil Action for Failing to State a Claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and

27

without leave to amend) (ECF No. 18) (“strike one”);

28

///
4
3:18-cv-01289-WQH-PCL

1

2)

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

2

(S.D. Cal. Nov. 21, 2017) (Order Granting Motion to Proceed IFP and Dismissing Civil

3

Action for Failing to State a Claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and without

4

leave to amend) (ECF No. 20) (“strike two”);

5

3)

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

6

(S.D. Cal. Feb. 15, 2018) (Order Denying Motion to Proceed IFP and Dismissing Civil

7

Action for Failing to State a Claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and without

8

leave to amend) (ECF No. 6) (“strike three”); and

9

4)

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

10

NLS (S.D. Cal. Feb. 20, 2018) (Order Granting Motion to Proceed IFP and Dismissing

11

Civil Action for Failing to State a Claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and

12

without leave to amend) (ECF No. 6) (“strike four”).2
Accordingly, because Chatman has accumulated more than three “strikes” pursuant

13
14

to § 1915(g) and fails to allege that he faced imminent danger of serious physical injury

15

at the time he filed his Complaint, he is not entitled to the privilege of proceeding IFP in

16

this action. See Andrews v. Cervantes, 493 F.3d at 1055; Rodriguez v. Cook, 169 F.3d

17

1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. § 1915(g) “does not prevent all

18

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

19

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

20
21
22
23
24
25
26
27
28

2

Chatman has also been denied leave to proceed IFP pursuant to 28 U.S.C. § 1915(g) in several subsequent
cases: Chatman v. Cush Honda, et al., S.D. Cal. Civil Case No. 3:18-cv-00414-JLS-KSC (March 26, 2018
Order) (ECF No. 5); Chatman v. Super 8 Motel Corp., et al., S.D. Cal. Civil Case No. 3:18-cv-00436CAB-RBB (March 19, 2018 Order) (ECF No. 6); Chatman v. Liquor Store, et al., S.D. Cal. Civil Case
No. 3:18-cv-00563-GPC-JMA (May 14, 2018 Order) (ECF No. 8); Chatman v. Ferrari Newport, et al.,
S.D. Cal. Civil Case No. 3:18-cv-00655-CAB-MDD (May 15, 2018 Order) (ECF No. 6); Chatman v.
Beverly Hills Lamborghini, et al., S.D. Cal. Civil Case No. 3:18-cv-00668-DMS-JMA (April 16, 2018
Order) (ECF No. 3); Chatman v. Citibank Corp., et al., S.D. Cal. Civil Case No. 3:18-cv-00748-LABAGS (April 23, 2018 Order) (ECF No. 3); Chatman v. Chatman, S.D. Cal. Civil Case No. 3:18-cv-00835CAB-PCL (June 4, 2018 Order) (ECF No. 5); Chatman v. Cush Acura, et al., S.D. Cal. Civil Case No.
3:18-cv-01235-WQH-MDD (July 20, 2018 Order) (ECF No. 8), and Chatman v. Jack in the Box, et al.,
S.D. Cal. Civil Case No. 3:18-cv-01253-WQH-MDD (Aug. 21, 2018 Order) (ECF No. 8).
5
3:18-cv-01289-WQH-PCL

1

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

2

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

3

II.

Motion to Appoint Counsel

4

Chatman has also filed a Motion to Appoint Counsel pursuant to 28 U.S.C.

5

§ 1915(e)(1) (ECF No. 3). However, a motion to appoint counsel pursuant to 28 U.S.C.

6

§ 1915(e)(1) necessarily depends upon Chatman’s ability to proceed IFP. See 28 U.S.C.

7

§ 1915(e)(1) (“The court may request an attorney to represent any person unable to afford

8

counsel.”). It requires that Chatman has been determined eligible to proceed pursuant to

9

the IFP statute due to indigence, is within “the sound discretion of the trial court[,] and is

10

granted only in exceptional circumstances.” Agyeman v. Corr. Corp. of Am., 390 F.3d

11

1101, 1103 (9th Cir. 2004). Because Chatman has failed to allege the presence of

12

exceptional circumstances here, and is not entitled to proceed IFP pursuant to 28 U.S.C.

13

§ 1915(g) in this case, he is also not entitled to the appointment of counsel under

14

§ 1915(e)(1).

15

III.

16
17
18
19
20
21
22

Conclusion and Orders
For the reasons discussed, the Court:
1)

DENIES Chatman’s Motions to Proceed IFP (ECF No. 2) and to Appoint

Counsel (ECF No. 3) as barred by 28 U.S.C. § 1915(g);
2)

DISMISSES this civil action without prejudice for failure to pay the full

statutory and administrative $400 civil filing fee required by 28 U.S.C. § 1914(a);
3)

CERTIFIES that an IFP appeal from this Order would be frivolous and

therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); and

23

4)

24

IT IS SO ORDERED.

25

Dated: September 19, 2018

DIRECTS the Clerk of Court to enter judgment and close the file.

26
27
28
6
3:18-cv-01289-WQH-PCL