United States District Court, S.D. California
ORDER: 1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS
AS BARRED BY 28 U.S.C. § 1915(G) [ECF NO. 2] AND (2)
DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILURE TO PAY
FILING FEE REQUIRED BY 28 U.S.C. § 1914(A)
Larry Alan Burns- Chief United States
Chatman (“Plaintiff”), currently incarcerated at
San Quentin State Prison and proceeding pro se, has filed a
civil rights Complaint pursuant to 42 U.S.C. § 1983.
See Compl., ECF No. 1. Chatman seeks to sue the
former, and now deceased, President of the Republic of Iraq,
his wife, his kids, his grandkids, and all his allies and
generals for “try[ing] to kill [him]” sometime
around August 2018, because he is the son of a U.S. Marine,
and after Chatman “read him his rights” at a
McDonalds. Id. at 1-3.
did not pay the civil filing fee required by 28 U.S.C. §
1914(a) at the time he filed his Complaint; instead, he filed
a Motion to Proceed In Forma Pauperis
(“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF
No. 2). He has since filed two letters addressed to the Court
which repeat and expand on the delusional allegations in his
Complaint and express his thanks. See ECF Nos. 4, 7.
Plaintiff's letters were accepted for filing in light of
his pro se status, and despite Local Civil Rule 83.9, which
clearly prohibits such ex parte communications. See
ECF Nos. 3, 6.
Motion to Proceed IFP
Standard of Review “All persons, not just
prisoners, may seek IFP status.” Moore v. Maricopa
County Sheriff's Office, 657 F.3d 890, 892
(9th Cir. 2011). Prisoners like Plaintiff, however,
“face an additional hurdle.” Id. In
addition to requiring prisoners to “pay the full amount
of a filing fee, ” in “monthly
installments” or “increments” as provided
by 28 U.S.C. § 1915(a)(3)(b), Bruce v. Samuels,
__ U.S. __, 136 S.Ct. 627, 629 (2016); Williams v.
Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison
Litigation Reform Act (“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.
28 U.S.C. § 1915(g). “This subdivision is commonly
known as the ‘three strikes' provision.”
Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir.
to § 1915(g), a prisoner with three strikes or more
cannot proceed IFP.” Id.; see also Andrews
v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007)
(hereafter “Cervantes”) (under the PLRA,
“[p]risoners who have repeatedly brought unsuccessful
suits may entirely be barred from IFP status under the three
strikes rule[.]”). The objective of the PLRA is to
further “the congressional goal of reducing frivolous
prisoner litigation in federal court.” Tierney v.
Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).
“[S]ection 1915(g)'s cap on prior dismissed claims
applies to claims dismissed both before and after the
statute's effective date.” Id. at 1311.
are prior cases or appeals, brought while the plaintiff was a
prisoner, which were dismissed on the ground that they were
frivolous, malicious, or failed to state a claim, ”
Andrews, 398 F.3d at 1116 n.1 (internal quotations
omitted), “even if the district court styles such
dismissal as a denial of the prisoner's application to
file the action without prepayment of the full filing
fee.” O'Neal v. Price, 531 F.3d 1146, 1153
(9th Cir. 2008); see also El-Shaddai v. Zamora, 833
F.3d 1036, 1042 (9th Cir. 2016) (noting that when court
“review[s] a dismissal to determine whether it counts
as a strike, the style of the dismissal or the procedural
posture is immaterial. Instead, the central question is
whether the dismissal ‘rang the PLRA bells of
frivolous, malicious, or failure to state a
claim.'”) (quoting Blakely v. Wards, 738
F.3d 607, 615 (4th Cir. 2013)).
prisoner has accumulated three strikes, he is prohibited by
section 1915(g) from pursuing any other IFP civil action or
appeal in federal court unless he alleges he is facing
“imminent danger of serious physical injury.”
See 28 U.S.C. § 1915(g); Cervantes,
493 F.3d at 1051-52 (noting § 1915(g)'s exception
for IFP complaints which “make a plausible allegation
that the prisoner faced ‘imminent danger of serious
physical injury' at the time of filing.”).
Application to Plaintiff The Court has reviewed
Plaintiff's Complaint and his letters, and concludes none
of these pleadings contain any “plausible
allegations” to suggest he “faced ‘imminent
danger of serious physical injury' at the time of
filing.” Cervantes, 493 F.3d at 1055 (quoting
28 U.S.C. § 1915(g)). Instead, as described above,
Plaintiff seeks to sue the former President of Iraq for
trying to posthumously kill him in a McDonalds restaurant.
See Compl., ECF No. 1 at 3; In re Gonzalez,
2008 WL 666465 at *2-3 (N.D. Cal. March 6, 2008) (finding
prisoner with a “delusional tale” of having a
“special genetic structure, ” and being
“irradiated … by radioactive smoke” by
“government scientists, ” did not plausibly
allege “imminent danger of serious physical
injury.”); Holz v. McFadden, 2010 WL 3069745
at *3 (C.D. Cal. May 21, 2010) (finding “imminent
danger” exception to § 1915(g) inapplicable where
prisoner implausibly claimed the FBI and BOP were
“going to kill him.”); Sierra v.
Woodford, 2010 WL 1657493 at *3 (E.D. Cal. April 23,
2010) (finding “long, narrative, rambling statements
regarding a cycle of violence, and vague references to
motives to harm” insufficient to show Plaintiff faced
an “ongoing danger” as required by
were not enough, Plaintiff's claims are clearly
delusional and patently frivolous. See 28 U.S.C.
§ 1915A(b)(1) (requiring sua sponte dismissal of
prisoner complaints, or any portions of them, which are
“frivolous, malicious, or fail[ ] to state a claim upon
which relief may be granted.”); Coleman v.
Tollefson, 135 S.Ct. 1759, 1764 (2015). “The
purpose of § 1915A is to ‘ensure that the targets
of frivolous or malicious suits need not bear the expense of
responding.”' Nordstrom v. Ryan, 762 F.3d
903, 907 n.1 (9th Cir. 2014) (internal citation omitted).
O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir.
1990) (a complaint “is frivolous if it has no arguable
basis in fact or law.”).
while Defendants typically carry the burden to show that a
prisoner is not entitled to proceed IFP, Andrews,
398 F.3d at 1119, “in some instances, the district
court docket may be sufficient to show that a prior dismissal
satisfies at least one on the criteria under § 1915(g)
and therefore counts as a strike.” Id. at
1120. That is the case here.
may take judicial notice of its own records, see Molus v.
Swan, Civil Case No. 3:05-cv-00452-MMA-WMc, 2009 WL
160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United
States v. Author Services, 804 F.2d 1520, 1523 (9th Cir.
1986)); Gerritsen v. Warner Bros. Entm't Inc.,
112 F.Supp.3d 1011, 1034 (C.D. Cal. 2015), and
“‘may take notice of proceedings in other courts,
both within and without the federal judicial system, if those
proceedings have a direct relation to matters at