Chatman v. Apts Behind Indoor Swap Meet in Oceanside and Indoor Swap Meet to et al, No. 3:2018cv01606 - Document 4 (S.D. Cal. 2018)
Court Description: ORDER Denying 2 Motions to Proceed in Forma Pauperis and to Appoint Counsel as Barred by 28 U.S.C. § 1915(g) and Dismissing Civil Action Without Prejudice for Failure to Pay Filing Fee Required by 28 U.S.C. § 1914(a). The Court: 1) deni es Plaintiff's Motions to Proceed IFP (Doc. No. 2) and to Appoint Counsel (Doc. 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 civ il 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 4) directs the Clerk of Court to enter judgment and close the file. Signed by Judge Michael M. Anello on 7/18/2018. (All non-registered users served via U.S. Mail Service)(rmc)
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Chatman v. Apts Behind Indoor Swap Meet in Oceanside and Indoor Swap Meet to et al Doc. 4 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 Case No.: 3:18-cv-01606-MMA-WVG ERIC CHATMAN, CDCR #BD-5474, ORDER: Plaintiff, vs. 1) DENYING MOTIONS TO PROCEED IN FORMA PAUPERIS AND TO APPOINT COUNSEL AS BARRED BY 28 U.S.C. § 1915(g) APTS BEHIND INDOOR SWAP MEET, et al., [Doc. Nos. 2, 3] Defendant. 18 AND 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 24 ERIC CHATMAN (“Plaintiff”), a prisoner incarcerated at Salinas Valley State 25 Prison in Soledad, California, and proceeding pro se, has filed a Complaint alleging he 26 was assaulted at “apts” and “treated very bad at car dealerships” on a form provided by 27 the Judicial Council of California. See Compl., Doc. No. 1. Plaintiff has also filed a 28 Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (Doc. No. 1 3:18-cv-01606-MMA-WVG Dockets.Justia.com 1 2), together with a Motion to Appoint Counsel (Doc. No. 3). 2 I. Motion to Proceed IFP 3 A. 4 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County Standard of Review 5 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, 6 “face … additional hurdle[s].” Id. 7 Specifically, in addition to requiring prisoners to “pay the full amount of a filing 8 fee,” in “monthly installments” or “increments” as provided by 28 U.S.C. 9 § 1915(a)(3)(b), Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. 10 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act 11 (“PLRA”) amended section 1915 to preclude the privilege to proceed IFP: 12 13 14 15 16 . . . 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. 17 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 18 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). 19 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” 20 Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter 21 “Cervantes”) (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful 22 suits may entirely be barred from IFP status under the three strikes rule[.]”). The 23 objective of the PLRA is to further “the congressional goal of reducing frivolous prisoner 24 litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 25 “[S]ection 1915(g)’s cap on prior dismissed claims applies to claims dismissed both 26 before and after the statute’s effective date.” Id. at 1311. 27 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, 28 which were dismissed on the ground that they were frivolous, malicious, or failed to state 2 3:18-cv-01606-MMA-WVG 1 a claim,” Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the 2 district court styles such dismissal as a denial of the prisoner’s application to file the 3 action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 4 (9th Cir. 2008). When courts “review a dismissal to determine whether it counts as a 5 strike, the style of the dismissal or the procedural posture is immaterial. Instead, the 6 central question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or 7 failure to state a claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) 8 (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). 9 Once a prisoner has accumulated three strikes, he is prohibited by section 1915(g) 10 from pursuing any other IFP civil action or appeal in federal court unless he alleges he is 11 facing “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 12 493 F.3d at 1051-52 (noting § 1915(g)’s exception for IFP complaints which “make[] a 13 plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ 14 at the time of filing.”). 15 B. 16 The Court has reviewed Plaintiff’s Complaint and finds that is contains no Application to Plaintiff 17 “plausible allegations” to suggest he “faced ‘imminent danger of serious physical injury’ 18 at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). 19 Plaintiff’s claims are insufficient to plausibly show ongoing or “imminent” danger of any 20 serious physical injury, they also fail as a matter of law to support any viable federal 21 claim for relief and are plainly frivolous. See Ouzts v. Maryland Nat’l Ins. Co., 505 F.2d 22 547, 550 (9th Cir. 1974) (“[P]urely private conduct, no matter how wrongful, is not 23 within the protective orbit of section 1983.”); Vey v. Clinton, 520 U.S. 937, 937 (1997) 24 (denying pro se litigant IFP status based on alleged civil rights and RICO violations by 25 U.S. President and private citizens as “patently frivolous.”). 26 And while Defendants typically carry the burden to show that a prisoner is not 27 entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in some instances, the district court 28 docket may be sufficient to show that a prior dismissal satisfies at least one on the criteria 3 3:18-cv-01606-MMA-WVG 1 under § 1915(g) and therefore counts as a strike.” Id. at 1120. 2 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case 3 No. 3:05-cv-00452–MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing 4 United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. 5 Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take 6 notice of proceedings in other courts, both within and without the federal judicial system, 7 if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 8 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 9 n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council 10 11 v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). Thus, this Court takes judicial notice that Plaintiff, Eric Chatman, identified as 12 CDCR Inmate #BD-5474, has had at least four prior prisoner civil actions dismissed in 13 this district alone on the grounds that they were frivolous, malicious, or failed to state a 14 claim upon which relief may be granted. 15 They are: 16 1) Chatman v. Toyota of Escondido, et al., Civil Case No. 3:17-cv-01853-BAS- 17 JLB (S.D. Cal. Nov. 8, 2017) (Order Granting Motion to Proceed IFP and Dismissing 18 Civil Action for Failing to State a Claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 19 without leave to amend) (Doc. No. 18) (“strike one”); 20 2) Chatman v. Cush Acura, et al., Civil Case No. 3:17-cv-01852-WQH-JLB 21 (S.D. Cal. Nov. 21, 2017) (Order Granting Motion to Proceed IFP and Dismissing Civil 22 Action for Failing to State a Claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and without 23 leave to amend) (Doc. No. 20) (“strike two”); 24 3) Chatman v. Super 8 Motel, et al., Civil Case No. 3:17-cv-02517-DMS-JMA 25 (S.D. Cal. Feb. 15, 2018) (Order Denying Motion to Proceed IFP and Dismissing Civil 26 Action for Failing to State a Claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and without 27 leave to amend) (Doc. No. 6) (“strike three”); and 28 4) Chatman v. Super 8 Motel Co., et al., Civil Case No. 3:18-cv-00213-BAS4 3:18-cv-01606-MMA-WVG 1 NLS (S.D. Cal. Feb. 20, 2018) (Order Granting Motion to Proceed IFP and Dismissing 2 Civil Action for Failing to State a Claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 3 without leave to amend) (Doc. No. 6) (“strike four”).1 4 Accordingly, because Plaintiff has, while incarcerated, accumulated more than 5 three “strikes” pursuant to § 1915(g), and he fails to make a plausible allegation that he 6 faced imminent danger of serious physical injury at the time he filed his Complaint, he is 7 not entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 8 1055; Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. 9 § 1915(g) “does not prevent all prisoners from accessing the courts; it only precludes 10 prisoners with a history of abusing the legal system from continuing to abuse it while 11 enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) 12 (“[C]ourt permission to proceed IFP is itself a matter of privilege and not right.”). 13 II. 14 15 Motion to Appoint Counsel In addition, Plaintiff has filed a Motion to Appoint Counsel pursuant to 28 U.S.C. § 1915(e)(1) (Doc. No. 3). 16 However, a motion to appoint counsel pursuant to 28 U.S.C. § 1915(e)(1) 17 necessarily depends upon Plaintiff’s ability to proceed IFP. See 28 U.S.C. § 1915(e)(1) 18 (“The court may request an attorney to represent any person unable to afford counsel.”). 19 It requires that Plaintiff has been determined eligible to proceed pursuant to the IFP 20 statute due to indigence, is within “the sound discretion of the trial court[,] and is granted 21 22 23 24 25 26 27 28 1 Plaintiff 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) (Doc. 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) (Doc. No. 6); Chatman v. Liquor Store, et al., S.D. Cal. Civil Case No. 3:18-cv-00563-GPC-JMA (May 14, 2018 Order) (Doc. No. 8); Chatman v. Ferrari Newport, et al., S.D. Cal. Civil Case No. 3:18-cv-00655-CAB-MDD (May 15, 2018 Order) (Doc. 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) (Doc. No. 3); Chatman v. Citibank Corp., et al., S.D. Cal. Civil Case No. 3:18-cv-00748-LABAGS (April 23, 2018 Order) (Doc. No. 3); and Chatman v. Chatman, S.D. Cal. Civil Case No. 3:18-cv00835-CAB-PCL (June 4, 2018 Order) (Doc. No. 5). 5 3:18-cv-01606-MMA-WVG 1 only in exceptional circumstances.” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 2 (9th Cir. 2004). Because Plaintiff has failed to allege the presence of exceptional 3 circumstances here, and is not entitled to proceed IFP pursuant to 28 U.S.C. § 1915(g) in 4 this case, he is also not entitled to the appointment of counsel under § 1915(e)(1). 5 III. 6 7 8 9 10 11 12 Conclusion For the reasons discussed, the Court: 1) DENIES Plaintiff’s Motions to Proceed IFP (Doc. No. 2) and to Appoint Counsel (Doc. 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 13 4) 14 IT IS SO ORDERED. 15 16 17 DIRECTS the Clerk of Court to enter judgment and close the file. DATE: July 18, 2018 _______________________________________ HON. MICHAEL M. ANELLO United States District Judge 18 19 20 21 22 23 24 25 26 27 28 6 3:18-cv-01606-MMA-WVG
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