Lettieri v. Maruchan Inc. et al

1
3:26-cv-0290-AJB-BJW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
DAVID C. LETTIERI,
Plaintiff,
v.
MARUCHAN INC., KEEFE GROUP, B.
WIGGINS, S. GONZALEZ, B.
CINNATA, D. ENGLISH, KAMARA,
FLAGG, F. BOWERS, AGENT DOES 1–
5, C/O DOES 1–20,
Defendants.
Case No.: 3:26-cv-0290-AJB-BJW
ORDER:
(1) DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AS BARRED BY 28 U.S.C. § 1915(g)
(Doc. No. 2) AND
(2) DISMISSING CIVIL ACTION
WITHOUT PREJUDICE FOR
FAILURE TO PAY FILING FEE
REQUIRED BY 28 U.S.C. § 1914(a)
INTRODUCTION
Plaintiff, David C. Lettieri, currently in custody at Devens Federal Medical Center
in Ayer, Massachusetts has filed a pro se Complaint and a Motion to Proceed In Forma
Pauperis (“IFP”). (Doc. Nos. 1; 2.) In his Complaint, Plaintiff alleges that he purchased
“Maruchan Ramen Noodle Soup” that was later “thrown out” while he was in a special
housing unit. (See Doc. No. 1 at 3.) He also alleges the nutritional information contained
on the label of the Maruchan Ramen was incorrect. (See generally id. at 5–7.) For the
Case 3:26-cv-00290-AJB-BJW Document 3 Filed 03/03/26 PageID.<pageID> Page
1 of 5

2
3:26-cv-0290-AJB-BJW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
reasons discussed below, the Court denies Plaintiff’s IFP motion and dismisses the case
without prejudice.
IFP MOTION
A. 	Legal Standard
All parties instituting any civil action, suit or proceeding in a district court of the
United States, except an application for writ of habeas corpus, must pay a filing fee of $350
fee, and those not granted leave to proceed IFP must pay an additional administrative fee
of $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court
Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The action may proceed despite a plaintiff’s
failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28
U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007);
Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).
For prisoners like Plaintiff, however, the Prison Litigation Reform Act (“PLRA”)
amended 28 U.S.C. § 1915 to preclude the privilege to proceed IFP:
. . . 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
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). “Once a prisoner
has accumulated three strikes, he is prohibited by § 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 1055 (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.”).
“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 fail[ed] to state a
claim,’” Andrews, 398 F.3d at 1116 n.1, “even if the district court styles such dismissal as
Case 3:26-cv-00290-AJB-BJW Document 3 Filed 03/03/26 PageID.<pageID> Page
2 of 5

3
3:26-cv-0290-AJB-BJW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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). When courts “review 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.’” El-Shaddai v.
Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (citation omitted).
B. 	Plaintiff’s Prior “Strikes”
Defendants typically carry the initial burden to produce evidence demonstrating a
prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, but “in some instances,
the district court docket may be sufficient to show that a prior dismissal satisfies at least
one of the criteria under § 1915(g) and therefore counts as a strike.” Id. at 1120. Upon
review of its own dockets and those of other federal courts, the Court finds that Plaintiff,
David C. Lettieri, is a frequent litigant, with at least 200 civil actions filed in federal district
courts since 2022. See Lettieri v. Facebook, 24-cv-0873-HSG, Doc. No. 10 (N.D. Cal. Sept.
16, 2024) (collecting cases). And he has had well over three prior civil actions and appeals
dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon
which relief may be granted. See Fed. R. Evid. 201(b)(2); Tiedemann v. von Blanckensee,
72 F.4th 1001, 1007 (9th Cir. 2023) (noting that courts 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.’” (citation omitted). They include:
(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
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1));
(2) 	Lettieri v. Daniels, Case No. 23-cv-0867-LVJ, Doc. No. 3 (W.D.N.Y.
Oct. 16, 2023) (Order dismissing civil action for failure to state a claim
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1));
(3) 	Lettieri v. Reynolds, Case No. 23-cv-0925-LVJ, Doc. No. 4 (W.D.N.Y.
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
Case 3:26-cv-00290-AJB-BJW Document 3 Filed 03/03/26 PageID.<pageID> Page
3 of 5

4
3:26-cv-0290-AJB-BJW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(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
a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1)).
Accordingly, because Plaintiff accumulated at least four qualifying strikes pursuant
to § 1915(g) before he filed this case,1 he cannot proceed IFP unless he meets the imminent
danger exception to the three strikes provision.
C. 	Imminent Danger of Serious Physical Injury
In order to qualify for § 1915(g)’s exception, Plaintiff’s pleading must contain a
“plausible allegation that [he] faced ‘imminent danger of serious physical injury’ at the
time of filing.” Cervantes, 493 F.3d at 1055; see also 28 U.S.C. § 1915(g). While Plaintiff’s
allegations are far from clear, but as best the Court can decipher, he alleges his Maruchan
Ramen was improperly confiscated and its packaging contained incorrect nutritional
information. (See Doc. No. 1 at 3, 5–6.) Lettieri, however, does not include 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)). Accordingly, he is
not entitled to proceed IFP in this civil action. See Cervantes, 493 F.3d at 1055; Rodriguez
v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. § 1915(g) “does not
prevent all prisoners from accessing the courts; it only precludes prisoners with a history
of abusing the legal system from continuing to abuse it while enjoying IFP status”); see
also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to
proceed IFP is itself a matter of privilege and not right.”).
CONCLUSION AND ORDER
For the reasons discussed above, the Court DENIES Plaintiff’s Motion to Proceed
IFP (Doc. No. 2) as barred by 28 U.S.C. § 1915(g); DISMISSES this civil action without
1 	The Court notes that Plaintiff is also subject to pre-filing orders in at least two districts that prohibit
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
No. 3:24-pf-00001-BKS, Doc. No. 4 (N.D.N.Y. May 10, 2024).
Case 3:26-cv-00290-AJB-BJW Document 3 Filed 03/03/26 PageID.<pageID> Page
4 of 5

5
3:26-cv-0290-AJB-BJW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
prejudice based on Plaintiff’s failure to pay the full statutory and administrative $405 civil
filing fee required by 28 U.S.C. § 1914(a); CERTIFIES that an IFP appeal from this Order
would be frivolous and not taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); and
DIRECTS the Clerk of the Court to close the case.
IT IS SO ORDERED.
Dated: March 3, 2026
Case 3:26-cv-00290-AJB-BJW Document 3 Filed 03/03/26 PageID.<pageID> Page
5 of 5