1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ERIC CHATMAN, Case No.: 3:20-cv-00041-CAB-LL CDCR #BI-6355, 12 ORDER: 13 Plaintiff, (1) DENYING MOTION TO 14 v. PROCEED IN FORMA PAUPERIS 15 AS BARRED BY

(g)

(ECF No. 2); AND 16 TOYOTA OF ESCONDIDO, et al., 17 (2) DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR 18 Defendants. FAILURE TO PAY FILING FEE 19 REQUIRED BY

(a) 20 21 22 Eric Chatman (“Plaintiff”), currently incarcerated at San Quentin State Prison 23 (“SQSP”) located in San Quentin, California, and proceeding pro se, has filed a civil 24 action in which he claims to have been raped at work at Toyota of Escondido in 1997 or 25 1998. (ECF No. 1, Compl.) 26 Plaintiff did not pay the civil filing fee required by

(a) at the time 27 he filed his Complaint; instead he filed a Motion to Proceed In Forma Pauperis (“IFP”) 1 pursuant to

(a) (ECF No. 2.) 2 I. Motion to Proceed IFP 3 A. Standard of Review 4 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cnty. 5 Sheriff’s Office,

(9th Cir. 2011). Prisoners, like Plaintiff, however, 6 “face an additional hurdle.”

In addition to requiring prisoners to “pay the full 7 amount of a filing fee,” in “increments” as provided by

(a)(3)(b), 8 Williams v. Paramo,

(9th Cir. 2015), the Prison Litigation Reform 9 Act (“PLRA”) amended section 1915 to preclude the privilege to proceed IFP: 10 . . . if [a] prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or 11 appeal in a court of the United States that was dismissed on the 12 grounds that it is frivolous, malicious, or fails to state a claim upon which relief can be granted, unless the prisoner is under 13 imminent danger of serious physical injury. 14

(g). “This subdivision is commonly known as the ‘three strikes’ 15 provision.” Andrews v. King,

, 1116 n.1 (9th Cir. 2005). 16 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” 17 Id.; see also Andrews v. Cervantes,

(9th Cir. 2007) (hereafter 18 “Cervantes”) (stating that under the PLRA, “[p]risoners who have repeatedly brought 19 unsuccessful suits may entirely be barred from IFP status under the three strikes 20 rule . . . .”). The objective of the PLRA is to further “the congressional goal of reducing 21 frivolous prisoner litigation in federal court.” Tierney v. Kupers,

, 1312 22 (9th Cir. 1997). “[S]ection 1915(g)’s cap on prior dismissed claims applies to claims 23 dismissed both before and after the statute’s effective date.”

. 24 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, 25 which were dismissed on the ground that they were frivolous, malicious, or failed to state 26 a claim,” Andrews,

n.1 (internal quotations omitted), “even if the 27 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,

, 1153 3 (9th Cir. 2008). Once a prisoner has accumulated three strikes, he is prohibited by 4 section 1915(g) from pursuing any other IFP action in federal court unless he can show 5 he is facing “imminent danger of serious physical injury.” See

(g); 6 Cervantes,

(noting § 1915(g)’s exception for IFP complaints which 7 “make[] a plausible allegation that the prisoner faced ‘imminent danger of serious 8 physical injury’ at the time of filing.”). 9 B. Application to Plaintiff 10 As an initial matter, the Court has carefully reviewed Plaintiff’s Complaint and has 11 ascertained that it does not contain “plausible allegations” which suggest he “faced 12 ‘imminent danger of serious physical injury’ at the time of filing.” Cervantes,

(quoting

(g)). Instead, Plaintiff alleges that more than twenty 14 years ago he was raped by his supervisor at the car dealership at which he worked. (See 15 Compl. at 13.) 16 A court “‘may take notice of proceedings in other courts, both within and without 17 the federal judicial system, if those proceedings have a direct relation to matters at 18 issue.’” Bias v. Moynihan,

(9th Cir. 2007) (quoting Bennett v. 19 Medtronic, Inc.,

, 803 n.2 (9th Cir. 2002)); see also United States ex rel. 20 Robinson Rancheria Citizens Council v. Borneo, Inc.,

(9th Cir. 1992). 21 The Court takes judicial notice that Plaintiff, while incarcerated, has had at least 22 three prior civil actions in this district alone dismissed on the grounds that they were 23 frivolous, malicious, or failed to state a claim upon which relief may be granted. See 28

(g). They are: 25 1) Chatman v. Toyota of Escondido, et al., No. 3:17-cv-01853-BAS-JLB, ECF 26 No. 18 (S.D. Cal. Nov. 8, 2017) (dismissing action for failing to state a 27 claim and without leave to amend) (strike one); 1 2) Chatman v. Cush Acura, et al., No. 3:17-cv-01852-WQH-JLB, ECF No. 20 2 (S.D. Cal. Nov. 21, 2017) (dismissing action for failing to state a claim and 3 without leave to amend) (strike two); 4 3) Chatman v. Super 8 Motel, et al., No. 3:17-cv-02517-DMS-JMA, ECF No. 9 5 (S.D. Cal. Feb. 15, 2018) (dismissing action for failing to state a claim and 6 without leave to amend) (strike three); and 7 4) Chatman v. Super 8 Motel Co., et al., No. 3:18-cv-00213-BAS-NLS, ECF 8 No. 6 (S.D. Cal. Feb. 20, 2018) (dismissing action as frivolous and without 9 leave to amend) (strike four). 10 Accordingly, because Plaintiff has, while incarcerated, accumulated at least the 11 three “strikes” permitted pursuant to § 1915(g), and fails to make a “plausible allegation” 12 that he faced imminent danger of serious physical injury at the time he filed his 13 Complaint, he is not entitled to proceed IFP in this action. See Cervantes,

1055; Rodriguez, 169 F.3d at 1180 (finding that

(g) “does not prevent 15 all prisoners from accessing the courts; it only precludes prisoners with a history of 16 abusing the legal system from continuing to abuse it while enjoying IFP status”); see also 17 Franklin v. Murphy,

(9th Cir. 1984) (“[C]ourt permission to proceed 18 IFP is itself a matter of privilege and not right.”). 19 III. Conclusion and Order 20 For the reasons set forth above, the Court: 21 1) DENIES Plaintiff’s Motion to Proceed IFP (ECF No. 2) as barred by 28

(g); 23 2) DISMISSES this civil action without prejudice for failure to pay the full 24 statutory and administrative $400 civil filing fee required by

(a); 25 3) CERTIFIES that an IFP appeal from this Order would be frivolous and 26 therefore, would not be taken in good faith pursuant to

(a)(3); and 27 4) DIRECTS the Clerk of Court to close the file. 1 IT IS SO ORDERED. 2 Dated: January 10, 2020 GB ° Hon. Cathy Ann Bencivengo 4 United States District Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28