Bonilla v. Simmons

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 STEVEN WAYNE BONILLA, Case No. 3:20-cv-00981-MMA-MDD CDCR #J-48500, 11 ORDER DENYING MOTION TO Plaintiff, 12 PROCEED IN FORMA PAUPERIS vs. AS BARRED BY 28 U.S.C. § 1915(g); 13 14 [Doc. No. 3] J. SIMMONS, J. OLSEN, JOHN 15 MORRILL, DISMISSING CIVIL ACTION FOR 16 Defendants. FAILURE TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 1914(a) 17 18 19 20 Plaintiff Steven Wayne Bonilla, proceeding pro se and currently incarcerated at 21 San Quentin State Prison has filed a civil action pursuant to 42 U.S.C. Section 1983. See 22 Doc. No. 1, Compl. 23 On May 28, 2020, the Court dismissed Plaintiff’s Complaint for failure to pay the 24 filing fee required by 28 U.S.C. Section 1914(a) and/or to file a motion to proceed in 25 forma pauperis (“IFP”) pursuant to 28 U.S.C. Section 1915(a) and granted Plaintiff thirty 26 days leave in which to pay the filing fee or file a complete motion to proceed IFP. See 27 Doc. No. 2, at 2-3. Plaintiff timely filed a Motion to Proceed In Forma Pauperis. See 28 Doc. No. 3. 1 I. Motion to Proceed IFP 2 A. Standard of Review 3 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cnty. 4 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners, like Plaintiff, however, 5 “face an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount 6 of a filing fee,” in “increments” as provided by 28 U.S.C. Section 1915(a)(3)(b), Williams 7 v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act 8 (“PLRA”) amended Section 1915 to preclude the privilege to proceed IFP: 9 . . . if [a] prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or 10 appeal in a court of the United States that was dismissed on the 11 grounds that it is frivolous, malicious, or fails to state a claim upon which relief can be granted, unless the prisoner is under 12 imminent danger of serious physical injury. 13 14 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 15 provision.” Andrews v. King, 398 F.3d 1113, 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, 493 F.3d 1047, 1052 (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, 128 F.3d 1310, 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.” Id. at 1311. 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, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the 27 district court styles such dismissal as a denial of the prisoner’s application to file the 28 action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 1 (9th Cir. 2008). When courts “review a dismissal to determine whether it counts as a 2 strike, the style of the dismissal or the procedural posture is immaterial. Instead, the 3 central question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or 4 failure to state a claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) 5 (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). “When . . . presented with 6 multiple claims within a single action,” however, courts may “assess a PLRA strike only 7 when the case as a whole is dismissed for a qualifying reason under the Act.” Hoffman v. 8 Pulido, 928 F.3d 1147, 1152 (9th Cir. 2019) (citing Washington v. L.A. Cnty. Sheriff’s 9 Dep’t, 833 F.3d 1048, 1057 (9th Cir. 2016)). 10 Once a prisoner has accumulated three strikes, he is prohibited by Section 1915(g) 11 from pursuing any other IFP action in federal court unless he can show he is facing 12 “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 13 F.3d at 1051-52 (noting Section 1915(g)’s exception for IFP complaints which “make[] a 14 plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ 15 at the time of filing.”). 16 B. Discussion 17 As a preliminary matter, the Court has reviewed Plaintiff’s Complaint and finds 18 that it does not contain any “plausible allegations” to suggest that he “faced ‘imminent 19 danger of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 20 (quoting 28 U.S.C. § 1915(g)). Instead, Plaintiff seeks orders: (1) compelling certain 21 Court staff to file documents challenging his underlying conviction in Alameda County 22 Superior Court and (2) declaring his judgment of conviction void. See Compl. at 2, 4. 23 While Defendants typically carry the initial burden to produce evidence 24 demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in 25 some instances, the district court docket may be sufficient to show that a prior dismissal 26 satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id. 27 at 1120. That is true here. 28 1 Based on the dockets of many court proceedings available on PACER, this Court 2 finds that Plaintiff Steven Wayne Bonilla, identified as CDCR #J-48500, while 3 incarcerated, has had dozens of prisoner civil actions or appeals dismissed on the grounds 4 that they were frivolous, malicious, or failed to state a claim upon which relief may be 5 granted. See In re Steven Bonilla, 2012 WL 216401, at *1 (N.D. Cal. Jan. 24, 2012) 6 (noting Plaintiff’s litigation history in the Northern District of California, including the 7 dismissal of 34 pro se civil rights actions between June 1 and October 31, 2011 alone, 8 which were dismissed “because the allegations in [his] complaints d[id] not state a claim 9 for relief under § 1983.”); id. at *3 (“The following five actions are DISMISSED without 10 prejudice and without leave to amend for failure to state a claim upon which relief may 11 be granted: Bonilla v. Superior Court of Alameda County, C 11-6306; Bonilla v. Alameda 12 County District Attorney’s Office, C 11-6307; Bonilla v. California Supreme Court, C 12- 13 0026; Bonilla v. Cullen, C 12-0027; Bonilla v. California Supreme Court, C 12-0206.”); 14 id. at *3 n.1 (“The Court recently informed Plaintiff that, in accordance with 28 U.S.C. 15 § 1915(g), he no longer qualifies to proceed in forma pauperis in any civil rights action.” 16 (citing In re Steven Bonilla, Nos. C 11-3180, et seq. CW (PR), Order of Dismissal at 17 6:23-7:19)). 18 Accordingly, because Plaintiff has, while incarcerated, accumulated far more than 19 the three “strikes” permitted by Section 1915(g), and he fails to make any plausible 20 allegation that he faced imminent danger of serious physical injury at the time he filed 21 this case, he is not entitled to the privilege of proceeding IFP. See Cervantes, 493 F.3d at 22 1055; Rodriguez, 169 F.3d at 1180 (noting that 28 U.S.C. § 1915(g) “does not prevent all 23 24 25 1 A court may take judicial notice of its own records, see Molus v. Swan, No. 3:05-cv-00452-MMA- WMc, 2009 WL 160937, at *2 (S.D. Cal. Jan. 22, 2009) (citing United States v. Author Servs., 804 F.2d 26 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 27 judicial system, if those proceedings have a direct relation to matters at issue.’” Bias, 508 F.3d at 1225 (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)); see also United States ex 28 1 || prisoners from accessing the courts; it only precludes prisoners with a history of abusing 2 || the legal system from continuing to abuse it while enjoying IFP status”); see also 3 || Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed 4 || IFP is itself a matter of privilege and not right.”). 5 ||II. Conclusion and Orders 6 For the reasons set forth above, the Court DENIES Plaintiff’s Motion to Proceed 7 || IFP as barred by 28 U.S.C. Section 1915(g), DISMISSES this civil action based on 8 || Plaintiff’s failure to pay the civil filing fee required by 28 U.S.C. Section 1914(a), 9 || CERTIFIES that an IFP appeal from this Order would not be taken in good faith pursuant 10 || to 28 U.S.C. Section 1915(a)(3), and DIRECTS the Clerk of the Court to enter judgment 11 || accordingly and close the case. 12 IT IS SO ORDERED. 13 || Dated: June 25, 2020 VW. f □□ ; ig bos 14 HON. MICHAEL M. ANELLO 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 5