Chatman v. Mobil Gas Station et al, No. 3:2018cv01675 - Document 11 (S.D. Cal. 2018)
Court Description: ORDER denying 2 Motion for Leave to Proceed in forma pauperis as barred by 28 USC 1915(g), and dismissing civil action without prejudice for failure to pay filing fee required by 28 USC 1914(a). Signed by Judge Janis L. Sammartino on 9/17/2018. (All non-registered users served via U.S. Mail Service)(jpp)
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Chatman v. Mobil Gas Station et al Doc. 11 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-01675-JLS (JMA) 13 14 ORDER: (1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS BARRED BY 28 U.S.C. § 1915(g), AND (2) DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 1914(a) Plaintiff, vs. 15 16 17 MOBIL GAS STATION, et al., Defendants. 18 (ECF Nos. 1, 2) 19 20 Eric Chatman (“Plaintiff”), currently incarcerated at Salinas Valley State Prison in 21 Soledad, California, and proceeding pro se, has filed a nine-page Complaint alleging 22 personal injury, general negligence, and intentional tort on a form provided by the Judicial 23 Council of California, against a Mobil gas station in Oceanside, Mobil Corporation, a 24 Porsche “shop,” Walmart, the City of National City, and “Escondido Transit.” See ECF 25 No. 1 (“Compl.”). While far from clear, it appears that Plaintiff seeks to hold these parties 26 liable for injuries he claims to suffered on or near their places of business in 1993, 1998, 27 and “around 2016–2017,” when he was “assaulted” by a Mobil clerk, “a ton of enemy 28 soldiers,” and “hit by a transit bus.” Id. at 3, 5–8. Plaintiff seeks hundreds of millions of 1 3:18-CV-01675-JLS (JMA) Dockets.Justia.com 1 dollars in “lump sum” damages, and asks to be awarded ownership interests in several of 2 the corporate entities he has named as Defendants. Id. at 5. 3 Plaintiff did not pay the civil filing fee required by 28 U.S.C. § 1914(a) at the time 4 he filed his Complaint; instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) 5 pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). He has since filed several letters addressed 6 to the Court in which he repeats his claims of heroism, and expresses his thanks. See ECF 7 Nos. 4, 6, 10. Plaintiff’s letters were accepted for filing in light of his pro se status and 8 despite Local Civil Rule 83.9, which clearly prohibits such ex parte communications. See 9 ECF Nos. 3, 5, 9. 10 I. MOTION TO PROCEED IFP 11 A. 12 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cnty. 13 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face 14 an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a 15 filing fee,” in “monthly installments” or “increments” as provided by 28 U.S.C. 16 § 1915(a)(3)(b), Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. 17 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act (“PLRA”) 18 amended Section 1915 to preclude the privilege to proceed IFP: 19 20 21 22 Standard of Review 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. 23 24 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 25 provision.” Andrews v. King (“Andrews”), 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). 26 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” 27 Id.; see also Andrews v. Cervantes (“Cervantes”), 493 F.3d 1047, 1052 (9th Cir. 2007) 28 (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may 2 3:18-CV-01675-JLS (JMA) 1 entirely be barred from IFP status under the three strikes rule”). The objective of the PLRA 2 is to further “the congressional goal of reducing frivolous prisoner litigation in federal 3 court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). “[S]ection 1915(g)’s cap 4 on prior dismissed claims applies to claims dismissed both before and after the statute’s 5 effective date.” Id. at 1311. 6 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 7 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 8 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 9 styles such dismissal as a denial of the prisoner’s application to file the action without 10 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008); 11 see also El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (noting that when 12 court “review[s] a dismissal to determine whether it counts as a strike, the style of the 13 dismissal or the procedural posture is immaterial. Instead, the central question is whether 14 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’”) 15 (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). 16 Once a prisoner has accumulated three strikes, he is prohibited by Section 1915(g) 17 from pursuing any other IFP civil action or appeal in federal court unless he alleges he is 18 facing “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 19 493 F.3d at 1051-52 (noting Section 1915(g)’s exception for IFP complaints which “make[] 20 a plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ 21 at the time of filing”). 22 B. 23 The Court has reviewed Plaintiff’s Complaint, as well as his letters, and finds they 24 fail to contain any “plausible allegations” to suggest he “faced ‘imminent danger of serious 25 physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. 26 § 1915(g)). Instead, as described above, Plaintiff seeks to sue a gas station, a municipality, 27 and several corporate entities in Southern California based on what appear to be farfetched 28 allegations of having incurred injuries while he was heroically “protecting them” from Application to Plaintiff 3 3:18-CV-01675-JLS (JMA) 1 “enemy soldiers” on unspecified occasions, some dating back to 1993. See Compl. at 5– 2 8; ECF No. 4 at 1; see also Holz v. McFadden, ED CV 07-1410-DSF (PJW), 2010 WL 3 3069745, at *3 (C.D. Cal. May 21, 2010) (finding “imminent danger” exception to 4 Section 1915(g) inapplicable where prisoner implausibly claimed the FBI and BOP were 5 “going to kill him”); Sierra v. Woodford, No. 1:07 cv 00149 LJO GSA (PC), 2010 WL 6 1657493, at *3 (E.D. Cal. April 23, 2010) (finding “long, narrative, rambling statements 7 regarding a cycle of violence, and vague references to motives to harm” insufficient to 8 show Plaintiff faced an “ongoing danger” as required by Cervantes); In re Gonzalez, Nos. 9 C 07-2373 MHP (pr) et al., 2008 WL 666465, at *2–3 (N.D. Cal. March 6, 2008) (finding 10 prisoner with a “delusional tale” of having a “special genetic structure” and being 11 “irradiated . . . by radioactive smoke” by “government scientists” did not plausibly allege 12 “imminent danger of serious physical injury”). 13 Further, Plaintiff fails to plead any basis for federal subject matter jurisdiction, and 14 his suit is patently frivolous. See 28 U.S.C. § 1915A(b)(1) (requiring sua sponte dismissal 15 of prisoner complaints, or any portions of them, which are “frivolous, malicious, or fail[] 16 to state a claim upon which relief may be granted”); Coleman v. Tollefson, __ U.S. __, 135 17 S. Ct. 1759, 1764 (2015). “The purpose of § 1915A is to ‘ensure that the targets of frivolous 18 or malicious suits need not bear the expense of responding.”’ Nordstrom v. Ryan, 762 F.3d 19 903, 907 n.1 (9th Cir. 2014) (internal citation omitted); O’Loughlin v. Doe, 920 F.2d 614, 20 617 (9th Cir. 1990) (a complaint “is frivolous if it has no arguable basis in fact or law”); 21 see also Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015) (lack of subject matter 22 jurisdiction requires dismissal “sua sponte if necessary”) (citations omitted); Arbaugh v. 23 Y&H Corp., 546 U.S. 500, 506 (2006) (“Whenever it appears by suggestion of the parties 24 or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss 25 the action.”). 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 of the criteria 4 3:18-CV-01675-JLS (JMA) 1 under Section 1915(g) and therefore counts as a strike.” Id. at 1120. 2 Such is the case here. 3 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case 4 No. 3:05-cv-00452-MMA-WMc, 2009 WL 160937, at *2 (S.D. Cal. Jan. 22, 2009) (citing 5 United States v. Author Servs., 804 F.2d 1520, 1523 (9th Cir. 1986)); see also Gerritsen v. 6 Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “may take 7 notice of proceedings in other courts, both within and without the federal judicial system, 8 if those proceedings have a direct relation to matters at issue.” Bias v. Moynihan, 508 F.3d 9 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th 10 Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, 11 Inc., 971 F.2d 244, 248 (9th Cir. 1992). 12 Thus, this Court takes judicial notice that Plaintiff Eric Chatman, identified as CDCR 13 Inmate #BD-5474, has had four prior prisoner civil actions dismissed in this district alone 14 on the grounds that they were frivolous, malicious, or failed to state a claim upon which 15 relief may be granted: 16 1) Order Granting Motion to Proceed IFP and Dismissing Civil Action for Failing to State a Claim Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and Without Leave to Amend, Chatman v. Toyota of Escondido, et al., Civil Case No. 3:17-CV-01853-BAS (JLB) (S.D. Cal. Nov. 8, 2017), ECF No. 18 (“Strike One”); 2) Order Granting Motion to Proceed IFP and Dismissing Civil Action for Failing to State a Claim Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and Without Leave to Amend, Chatman v. Cush Acura, et al., Civil Case No. 3:17-CV-01852-WQH (JLB) (S.D. Cal. Nov. 21, 2017), ECF No. 20 (“Strike Two”); 3) Order Denying Motion to Proceed IFP and Dismissing Civil Action for Failing to State a Claim Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and Without Leave to Amend, Chatman v. Super 8 Motel, et al., Civil Case No. 3:17-CV-02517-DMS (JMA) (S.D. Cal. Feb. 15, 2018), ECF No. 6 (“Strike Three”); and 17 18 19 20 21 22 23 24 25 26 27 28 5 3:18-CV-01675-JLS (JMA) 1 4) 2 3 4 Order Granting Motion to Proceed IFP and Dismissing Civil Action for Failing to State a Claim Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and Without Leave to Amend, Chatman v. Super 8 Motel Co., et al., Civil Case No. 3:18-CV-00213-BAS (NLS) (S.D. Cal. Feb. 20, 2018), ECF No. 6 (“Strike Four”). 1 5 Accordingly, because Plaintiff has, while incarcerated, accumulated more than three 6 “strikes” pursuant to Section 1915(g) and fails to make a plausible allegation that he faced 7 imminent danger of serious physical injury at the time he filed his Complaint, he is not 8 entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055; 9 Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. § 1915(g) 10 “does not prevent all prisoners from accessing the courts; it only precludes prisoners with 11 a history of abusing the legal system from continuing to abuse it while enjoying IFP 12 status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt 13 permission to proceed IFP is itself a matter of privilege and not right.”). 14 II. CONCLUSION AND ORDERS 15 For the reasons set forth above, the Court: 16 (1) 17 DENIES Plaintiff’s Motion to Proceed IFP (ECF No. 2) as barred by 28 U.S.C. § 1915(g); 18 (2) DISMISSES this action without prejudice based on Plaintiff’s failure to pay 19 the full statutory and administrative $400 civil filing fee required by 28 U.S.C. § 1914(a); 20 /// 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., Civil Case No. 3:18-CV-00414-JLS (KSC) (S.D. Cal. March 26, 2018), ECF No. 5; Chatman v. Super 8 Motel Corp., et al., Civil Case No. 3:18-CV-00436-CAB (RBB) (S.D. Cal. March 19, 2018), ECF No. 6; Chatman v. Liquor Store, et al., Civil Case No. 3:18-CV-00563GPC (JMA) (S.D. Cal. May 14, 2018), ECF No. 8; Chatman v. Ferrari Newport, et al., Civil Case No. 3:18-CV-00655-CAB (MDD) (S.D. Cal. May 15, 2018), ECF No. 6; Chatman v. Beverly Hills Lamborghini, et al., Civil Case No. 3:18-CV-00668-DMS (JMA) (S.D. Cal. April 16, 2018), ECF No. 3; Chatman v. Citibank Corp., et al., Civil Case No. 3:18-CV-00748-LAB (AGS) (S.D. Cal. April 23, 2018), ECF No. 3; and Chatman v. Chatman, Civil Case No. 3:18-CV-00835-CAB (PCL) (S.D. Cal. June 4, 2018), ECF No. 5. 6 3:18-CV-01675-JLS (JMA) 1 3) CERTIFIES that an IFP appeal from this Order would be frivolous and, 2 therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See 3 Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 4 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal 5 would not be frivolous); and DIRECTS the Clerk of Court to close the file.2 6 4) 7 IT IS SO ORDERED. 8 9 Dated: September 17, 2018 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Because Plaintiff has demonstrated a proclivity to write letters to the Court in this and in most of his previous cases in violation of the Court’s Local Rules prohibiting ex parte communication, he is again cautioned that Civil Local Rule 83.9 provides that “attorneys or parties to any action must refrain from writing letters to the judge,” and 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). Consequently, any additional ex parte letters Plaintiff attempts to file in this matter will be summarily rejected based on Local Rule 83.9, and because this Order terminates his case. 7 3:18-CV-01675-JLS (JMA)
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