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)
Hon.
Cathy Ann Bencivengo United States District Judge
Eric
Chatman (“Plaintiff”), currently incarcerated at
San Quentin State Prison (“SQSP”) located in San
Quentin, California, and proceeding pro se, has filed a civil
action in which he claims to have been raped at work at
Toyota of Escondido in 1997 or 1998. (ECF No. 1, Compl.)
Plaintiff
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.)
I.
Motion to Proceed IFP
A.
Standard of Review
“All
persons, not just prisoners, may seek IFP status.”
Moore v. Maricopa Cnty. 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
“increments” as provided by 28 U.S.C. §
1915(a)(3)(b), 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.
2005).
“Pursuant
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”) (stating that
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.
“Strikes
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). Once a prisoner has accumulated three
strikes, he is prohibited by section 1915(g) from pursuing
any other IFP action in federal court unless he can show 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.”).
B.
Application to Plaintiff
As an
initial matter, the Court has carefully reviewed
Plaintiff's Complaint and has ascertained that it does
not contain “plausible allegations” which 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,
Plaintiff alleges that more than twenty years ago he was
raped by his supervisor at the car dealership at which he
worked. (See Compl. at 13.)
A court
“‘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
issue.'” Bias v. Moynihan, 508 F.3d 1212,
1225 (9th Cir. 2007) (quoting Bennett v. Medtronic,
Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)); see
also United States ex rel. Robinson Rancheria Citizens
Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.
1992).
The
Court takes judicial notice that Plaintiff, while
incarcerated, has had at least three prior civil actions in
this district alone dismissed on the grounds that they were
frivolous, malicious, or failed to state a claim upon ...