Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID C. LETTIERI, Case No.: 3:26-cv-0290-AJB-BJW 12 ORDER: Plaintiff, 13 v. (1) DENYING MOTION TO 14 PROCEED IN FORMA PAUPERIS 15 AS BARRED BY 28 U.S.C. § 1915(g) MARUCHAN INC., KEEFE GROUP, B. (Doc. No. 2) AND 16 WIGGINS, S. GONZALEZ, B. 17 CINNATA, D. ENGLISH, KAMARA, (2) DISMISSING CIVIL ACTION FLAGG, F. BOWERS, AGENT DOES 1– WITHOUT PREJUDICE FOR 18 5, C/O DOES 1–20, FAILURE TO PAY FILING FEE 19 REQUIRED BY 28 U.S.C. § 1914(a) 20 Defendants. 21 22 INTRODUCTION 23 Plaintiff, David C. Lettieri, currently in custody at Devens Federal Medical Center 24 in Ayer, Massachusetts has filed a pro se Complaint and a Motion to Proceed In Forma 25 Pauperis (“IFP”). (Doc. Nos. 1; 2.) In his Complaint, Plaintiff alleges that he purchased 26 “Maruchan Ramen Noodle Soup” that was later “thrown out” while he was in a special 27 housing unit. (See Doc. No. 1 at 3.) He also alleges the nutritional information contained 28 on the label of the Maruchan Ramen was incorrect. (See generally id. at 5–7.) For the 1 reasons discussed below, the Court denies Plaintiff’s IFP motion and dismisses the case 2 without prejudice. 3 IFP MOTION 4 A. Legal Standard 5 All parties instituting any civil action, suit or proceeding in a district court of the 6 United States, except an application for writ of habeas corpus, must pay a filing fee of $350 7 fee, and those not granted leave to proceed IFP must pay an additional administrative fee 8 of $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court 9 Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The action may proceed despite a plaintiff’s 10 failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 11 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 12 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 13 For prisoners like Plaintiff, however, the Prison Litigation Reform Act (“PLRA”) 14 amended 28 U.S.C. § 1915 to preclude the privilege to proceed IFP: 15 . . . if [he] 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 16 was dismissed on the grounds that it is frivolous, malicious, or fails to state a 17 claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 18 19 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 20 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Once a prisoner 21 has accumulated three strikes, he is prohibited by § 1915(g) from pursuing any other IFP 22 action in federal court unless he can show he is facing “imminent danger of serious physical 23 injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1055 (noting § 1915(g)’s 24 exception for IFP complaints which “make[] a plausible allegation that the prisoner faced 25 ‘imminent danger of serious physical injury’ at the time of filing.”). 26 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 27 were dismissed ‘on the ground that (they were) frivolous, malicious, or fail[ed] to state a 28 claim,’” Andrews, 398 F.3d at 1116 n.1, “even if the district court styles such dismissal as 1 a denial of the prisoner’s application to file the action without prepayment of the full filing 2 fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). When courts “review a 3 dismissal to determine whether it counts as a strike, the style of the dismissal or the 4 procedural posture is immaterial. Instead, the central question is whether the dismissal 5 ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El-Shaddai v. 6 Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (citation omitted). 7 B. Plaintiff’s Prior “Strikes” 8 Defendants typically carry the initial burden to produce evidence demonstrating a 9 prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, but “in some instances, 10 the district court docket may be sufficient to show that a prior dismissal satisfies at least 11 one of the criteria under § 1915(g) and therefore counts as a strike.” Id. at 1120. Upon 12 review of its own dockets and those of other federal courts, the Court finds that Plaintiff, 13 David C. Lettieri, is a frequent litigant, with at least 200 civil actions filed in federal district 14 courts since 2022. See Lettieri v. Facebook, 24-cv-0873-HSG, Doc. No. 10 (N.D. Cal. Sept. 15 16, 2024) (collecting cases). And he has had well over three prior civil actions and appeals 16 dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon 17 which relief may be granted. See Fed. R. Evid. 201(b)(2); Tiedemann v. von Blanckensee, 18 72 F.4th 1001, 1007 (9th Cir. 2023) (noting that courts may “‘take notice of proceedings 19 in other courts, both within and without the federal judicial system, if those proceedings 20 have a direct relation to matters at issue.’” (citation omitted). They include: 21 (1) Lettieri v. Daniels, et al., Case No. 23-cv-0487-LJV, Doc. No. 18 (W.D.N.Y. Mar. 8, 2024) (Order dismissing action for failure to state a claim 22 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1)); 23 (2) Lettieri v. Daniels, Case No. 23-cv-0867-LVJ, Doc. No. 3 (W.D.N.Y. 24 Oct. 16, 2023) (Order dismissing civil action for failure to state a claim 25 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1));

26 (3) Lettieri v. Reynolds, Case No. 23-cv-0925-LVJ, Doc. No. 4 (W.D.N.Y. 27 Oct. 17, 2023), Doc. No. 4 (Order action for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1)); and 28 1 (4) Lettieri v. Northeast Ohio Corr. Ctr., Case No. 4:23-cv-2172-SL, Doc. No. 14 (N.D. Ohio (Dec. 11, 2023) (Order dismissing case for failure to state 2 a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1)). 3 4 Accordingly, because Plaintiff accumulated at least four qualifying strikes pursuant 5 to § 1915(g) before he filed this case,1 he cannot proceed IFP unless he meets the imminent 6 danger exception to the three strikes provision. 7 C. Imminent Danger of Serious Physical Injury 8 In order to qualify for § 1915(g)’s exception, Plaintiff’s pleading must contain a 9 “plausible allegation that [he] faced ‘imminent danger of serious physical injury’ at the 10 time of filing.” Cervantes, 493 F.3d at 1055; see also 28 U.S.C. § 1915(g). While Plaintiff’s 11 allegations are far from clear, but as best the Court can decipher, he alleges his Maruchan 12 Ramen was improperly confiscated and its packaging contained incorrect nutritional 13 information. (See Doc. No. 1 at 3, 5–6.) Lettieri, however, does not include any “plausible 14 allegations” to suggest he “faced ‘imminent danger of serious physical injury’ at the time 15 of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). Accordingly, he is 16 not entitled to proceed IFP in this civil action. See Cervantes, 493 F.3d at 1055; Rodriguez 17 v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. § 1915(g) “does not 18 prevent all prisoners from accessing the courts; it only precludes prisoners with a history 19 of abusing the legal system from continuing to abuse it while enjoying IFP status”); see 20 also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to 21 proceed IFP is itself a matter of privilege and not right.”). 22 CONCLUSION AND ORDER 23 For the reasons discussed above, the Court DENIES Plaintiff’s Motion to Proceed 24 IFP (Doc. No. 2) as barred by 28 U.S.C. § 1915(g); DISMISSES this civil action without 25 26 1 The Court notes that Plaintiff is also subject to pre-filing orders in at least two districts that prohibit 27 him from filing any cases or pleadings without the court’s prior permission. See In re David C. Lettieri, C No. 1:23-mc-0032-LJV, Doc. No. 18 (W.D.N.Y. Jan. 19, 2024), Doc. No. 18; In re David C. Lettieri, C 28 1 || prejudice based on Plaintiff's failure to pay the full statutory and administrative $405 civil 2 || filing fee required by 28 U.S.C. § 1914(a); CERTIFIES that an IFP appeal from this Order 3 || would be frivolous and not taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); and 4 || DIRECTS the Clerk of the Court to close the case. 5 IT IS SO ORDERED. 6 || Dated: March 3, 2026 □ 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 oe