Chatman v. State of California et al, No. 3:2018cv01870 - Document 6 (S.D. Cal. 2018)
Court Description: ORDER Denying Motions To Proceed In Forma Pauperis And To Appoint Counsel As Barred By 28 U.S.C. 1915(g) re 3 Motion to Appoint Counsel ; 2 Motion for Leave to Proceed in forma pauperis And Dismissing Civil Action Without Prejudice For Failure To Pay Filing Fee Required By 28 U.S.C. 1914(a). Signed by Judge Barry Ted Moskowitz on 9/20/2018. (All non-registered users served via U.S. Mail Service)(sjm)
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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-01870-BTM-KSC 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 STATE OF CALIFORNIA; CDC, Defendants. AND 18 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 (“Plaintiff”), a prisoner incarcerated at Salinas Valley State 24 Prison in Soledad, California, and proceeding pro se, has filed a Complaint (“Compl.”) 25 alleging that he has been incarcerated for a longer duration than he agreed to in his plea 26 agreement. See Compl., ECF No. 1. Plaintiff has also filed a Motion to Proceed In 27 Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2), together with a 28 Motion to Appoint Counsel (ECF No. 3). 1 3:18-cv-01870-BTM-KSC 1 I. Motion to Proceed IFP 2 A. 3 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County Standard of Review 4 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, 5 “face … additional hurdle[s].” Id. 6 Specifically, in addition to requiring prisoners to “pay the full amount of a filing 7 fee,” in “monthly installments” or “increments” as provided by 28 U.S.C. 8 § 1915(a)(3)(b), Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. 9 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act 10 11 12 13 14 (“PLRA”) amended section 1915 to preclude the privilege to proceed IFP: . . . 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 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 17 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). 18 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” 19 Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter 20 “Cervantes”) (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful 21 suits may entirely be barred from IFP status under the three strikes rule[.]”). The 22 objective of the PLRA is to further “the congressional goal of reducing frivolous prisoner 23 litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 24 “[S]ection 1915(g)’s cap on prior dismissed claims applies to claims dismissed both 25 before and after the statute’s effective date.” Id. at 1311. 26 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, 27 which were dismissed on the ground that they were frivolous, malicious, or failed to state 28 a claim,” Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the 2 3:18-cv-01870-BTM-KSC 1 district court styles such dismissal as a denial of the prisoner’s application to file the 2 action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 3 (9th Cir. 2008). When courts “review a dismissal to determine whether it counts as a 4 strike, the style of the dismissal or the procedural posture is immaterial. Instead, the 5 central question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or 6 failure to state a claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) 7 (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). 8 Once a prisoner has accumulated three strikes, he is prohibited by section 1915(g) 9 from pursuing any other IFP civil action or appeal in federal court unless he alleges he is 10 facing “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 11 493 F.3d at 1051-52 (noting § 1915(g)’s exception for IFP complaints which “make[] a 12 plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ 13 at the time of filing.”). 14 B. 15 The Court has reviewed Plaintiff’s Complaint and finds that it contains no Application to Plaintiff 16 “plausible allegations” to suggest he “faced ‘imminent danger of serious physical injury’ 17 at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). 18 Plaintiff’s claims are insufficient to plausibly show ongoing or “imminent” danger of any 19 serious physical injury, they also fail as a matter of law to support any viable federal 20 claim for relief and are plainly frivolous. See Ouzts v. Maryland Nat’l Ins. Co., 505 F.2d 21 547, 550 (9th Cir. 1974) (“[P]urely private conduct, no matter how wrongful, is not 22 within the protective orbit of section 1983.”); Vey v. Clinton, 520 U.S. 937, 937 (1997) 23 (denying pro se litigant IFP status based on alleged civil rights and RICO violations by 24 U.S. President and private citizens as “patently frivolous.”). 25 And while Defendants typically carry the burden to show that a prisoner is not 26 entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in some instances, the district court 27 docket may be sufficient to show that a prior dismissal satisfies at least one on the criteria 28 under § 1915(g) and therefore counts as a strike.” Id. at 1120. 3 3:18-cv-01870-BTM-KSC 1 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case 2 No. 3:05-cv-00452–MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing 3 United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. 4 Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take 5 notice of proceedings in other courts, both within and without the federal judicial system, 6 if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 7 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 8 n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council 9 v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). 10 Thus, this Court takes judicial notice that Plaintiff, Eric Chatman, identified as 11 CDCR Inmate #BD-5474, has had four prior prisoner civil actions dismissed in this 12 district alone on the grounds that they were frivolous, malicious, or failed to state a claim 13 upon which relief may be granted. 14 They are: 15 1) Chatman v. Toyota of Escondido, et al., Civil Case No. 3:17-cv-01853-BAS- 16 JLB (S.D. Cal. Nov. 8, 2017) (Order Granting Motion to Proceed IFP and Dismissing 17 Civil Action for Failing to State a Claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 18 without leave to amend) (ECF No. 18) (“strike one”); 19 2) Chatman v. Cush Acura, et al., Civil Case No. 3:17-cv-01852-WQH-JLB 20 (S.D. Cal. Nov. 21, 2017) (Order Granting Motion to Proceed IFP and Dismissing Civil 21 Action for Failing to State a Claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and without 22 leave to amend) (ECF No. 20) (“strike two”); 23 3) Chatman v. Super 8 Motel, et al., Civil Case No. 3:17-cv-02517-DMS-JMA 24 (S.D. Cal. Feb. 15, 2018) (Order Denying Motion to Proceed IFP and Dismissing Civil 25 Action for Failing to State a Claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and without 26 leave to amend) (ECF No. 6) (“strike three”); and 27 /// 28 /// 4 3:18-cv-01870-BTM-KSC 1 4) Chatman v. Super 8 Motel Co., et al., Civil Case No. 3:18-cv-00213-BAS- 2 NLS (S.D. Cal. Feb. 20, 2018) (Order Granting Motion to Proceed IFP and Dismissing 3 Civil Action for Failing to State a Claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 4 without leave to amend) (ECF No. 6) (“strike four”).1 5 Accordingly, because Plaintiff has, while incarcerated, accumulated more than 6 three “strikes” pursuant to § 1915(g), and he fails to make a plausible allegation that he 7 faced imminent danger of serious physical injury at the time he filed his Complaint, he is 8 not entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 9 1055; Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. 10 § 1915(g) “does not prevent all prisoners from accessing the courts; it only precludes 11 prisoners with a history of abusing the legal system from continuing to abuse it while 12 enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) 13 (“[C]ourt permission to proceed IFP is itself a matter of privilege and not right.”). 14 II. 15 16 Motion to Appoint Counsel In addition, Plaintiff has filed a Motion to Appoint Counsel pursuant to 28 U.S.C. § 1915(e)(1) (ECF No. 3). 17 However, a motion to appoint counsel pursuant to 28 U.S.C. § 1915(e)(1) 18 necessarily depends upon Plaintiff’s ability to proceed IFP. See 28 U.S.C. § 1915(e)(1) 19 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., S.D. Cal. Civil Case No. 3:18cv-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-00436-CAB-RBB (March 19, 2018 Order) (ECF No. 6); Chatman v. Liquor Store, et al., S.D. Cal. Civil Case No. 3:18-cv-00563GPC-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-00668DMS-JMA (April 16, 2018 Order) (ECF No. 3); Chatman v. Citibank Corp., et al., S.D. Cal. Civil Case No. 3:18-cv-00748-LAB-AGS (April 23, 2018 Order) (ECF No. 3); and Chatman v. Chatman, S.D. Cal. Civil Case No. 3:18-cv-00835-CAB-PCL (June 4, 2018 Order) (ECF No. 5). 5 3:18-cv-01870-BTM-KSC 1 (“The court may request an attorney to represent any person unable to afford counsel.”). 2 It requires that Plaintiff has been determined eligible to proceed pursuant to the IFP 3 statute due to indigence, is within “the sound discretion of the trial court[,] and is granted 4 only in exceptional circumstances.” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 5 (9th Cir. 2004). Because Plaintiff has failed to allege the presence of exceptional 6 circumstances here, and is not entitled to proceed IFP pursuant to 28 U.S.C. § 1915(g) in 7 this case, he is also not entitled to the appointment of counsel under § 1915(e)(1). 8 III. 9 10 11 12 13 14 15 Conclusion and Orders For the reasons discussed, the Court: 1) DENIES Plaintiff’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 16 4) 17 IT IS SO ORDERED. DIRECTS the Clerk of Court to enter judgment and close the file. 18 19 20 21 Dated: September 20, 2018 ____________________________________ Hon. Barry Ted Moskowitz, Chief Judge United States District Court 22 23 24 25 26 27 28 6 3:18-cv-01870-BTM-KSC
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