Bonilla v. Houston

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA — 10 — 11 STEVEN WAYNE BONILLA, Case No.: 3:20-cv-00898-CAB-KSC CDCR #J-48500, — 12 — ORDER: Plaintiff, — 13 — vs. 1) DENYING MOTION TO — 14 — PROCEED IN FORMA PAUPERIS 15 AS BARRED BY 28 U.S.C. § 1915 (g) JOHN A. HOUSTON, [ECF No. 3] 16 Defendants. 17 AND — 18 — 2) DISMISSING CIVIL ACTION 19 FOR FAILURE TO PAY FILING FEE REQUIRED BY 28 U.S.C. — 20 — § 1914(a) — 21 — — 22 — — 23 — — 24 — 25 Plaintiff Steven Wayne Bonilla, proceeding pro se and currently incarcerated at San 26 Quentin State Prison has filed a civil rights complaint. (See ECF No. 1, Compl.) 27 On May 19, 2020, the Court dismissed Plaintiff’s Complaint for failure to pay the 28 filing fee required by 28 U.S.C. Section 1914 (a) and/or to file a motion to proceed in forma 1 pauperis (“IFP”) pursuant to 28 U.S.C. Section 1915 (a), and granted Plaintiff thirty days 2 leave in which to pay the filing fee or file a complete motion to proceed IFP. (See ECF 3 No. 2, at 2-3.) On June 17, 2020, Plaintiff filed a Motion to Proceed IFP pursuant to 28 4 U.S.C. Section 1915 (a). (See ECF No. 3.) 5 I. Motion to Proceed IFP 6 A. Standard of Review 7 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cnty. 8 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners, like Plaintiff, however, 9 “face an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount 10 of a filing fee,” in “increments” as provided by 28 U.S.C. Section 1915 (a)(3)(b), Williams 11 v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act 12 (“PLRA”) amended Section 1915 to preclude the privilege to proceed IFP: 13 . . . if [a] prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or — 14 — appeal in a court of the United States that was dismissed on the 15 grounds that it is frivolous, malicious, or fails to state a claim upon which relief can be granted, unless the prisoner is under — 16 — imminent danger of serious physical injury. — 17 — — 18 — 28 U.S.C. § 1915 (g). “This subdivision is commonly known as the ‘three strikes’ 19 provision.” Andrews v. King, 398 F.3d 1113 , 1116 n.1 (9th Cir. 2005). 20 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” 21 Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter 22 “Cervantes”) (stating that under the PLRA, “[p]risoners who have repeatedly brought 23 unsuccessful suits may entirely be barred from IFP status under the three strikes 24 rule . . . .”). The objective of the PLRA is to further “the congressional goal of reducing 25 frivolous prisoner litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310 , 1312 26 (9th Cir. 1997). “[S]ection 1915(g)’s cap on prior dismissed claims applies to claims 27 dismissed both before and after the statute’s effective date.” Id. at 1311 . 28 / / / 1 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 2 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 3 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 4 styles such dismissal as a denial of the prisoner’s application to file the action without 5 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 6 When courts “review a dismissal to determine whether it counts as a strike, the style of the 7 dismissal or the procedural posture is immaterial. Instead, the central question is whether 8 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El9 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 10 F.3d 607, 615 (4th Cir. 2013)). “When . . . presented with multiple claims within a single 11 action,” however, courts may “assess a PLRA strike only when the case as a whole is 12 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d 1147 , 1152 13 (9th Cir. 2019) (citing Washington v. L.A. Cnty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th 14 Cir. 2016)). 15 Once a prisoner has accumulated three strikes, he is prohibited by Section 1915(g) 16 from pursuing any other IFP action in federal court unless he can show he is facing 17 “imminent danger of serious physical injury.” See 28 U.S.C. § 1915 (g); Cervantes, 493 18 F.3d at 1051-52 (noting Section 1915(g)’s exception for IFP complaints which “make[] a 19 plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ at 20 the time of filing.”). 21 B. Discussion 22 As a preliminary matter, the Court has reviewed Plaintiff’s Complaint and finds that 23 it does not contain any “plausible allegations” to suggest that he “faced ‘imminent danger 24 of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 25 U.S.C. § 1915 (g)). Instead, Plaintiff asks that his Alameda County judgment of conviction 26 be declared void for lack of subject-matter jurisdiction. (Compl. at 2.) 27 While Defendants typically carry the initial burden to produce evidence 28 demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119 , “in 1 some instances, the district court docket may be sufficient to show that a prior dismissal 2 satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id. 3 at 1120. That is true here. 4 Based on the dockets of many court proceedings available on PACER,1 this Court 5 finds that Plaintiff Steven Wayne Bonilla, identified as CDCR #J-48500, while 6 incarcerated, has had dozens of prisoner civil actions or appeals dismissed on the grounds 7 that they were frivolous, malicious, or failed to state a claim upon which relief may be 8 granted. See In re Steven Bonilla, 2012 WL 216401 , at *1 (N.D. Cal. Jan. 24, 2012) (noting 9 Plaintiff’s litigation history in the Northern District of California, including the dismissal 10 of 34 pro se civil rights actions between June 1 and October 31, 2011 alone, which were 11 dismissed “because the allegations in [his] complaints d[id] not state a claim for relief 12 under § 1983.”); id. at *3 (“The following five actions are DISMISSED without prejudice 13 and without leave to amend for failure to state a claim upon which relief may be granted: 14 Bonilla v. Superior Court of Alameda County, C 11-6306; Bonilla v. Alameda County 15 District Attorney’s Office, C 11-6307; Bonilla v. California Supreme Court, C 12-0026; 16 Bonilla v. Cullen, C 12-0027; Bonilla v. California Supreme Court, C 12-0206.”); id. at *3 17 n.1 (“The Court recently informed Plaintiff that, in accordance with 28 U.S.C. § 1915 (g), 18 he no longer qualifies to proceed in forma pauperis in any civil rights action.” (citing In re 19 Steven Bonilla, Nos. C 11-3180, et seq. CW (PR), Order of Dismissal at 6:23-7:19)). 20 Accordingly, because Plaintiff has, while incarcerated, accumulated far more than 21 the three “strikes” permitted by Section 1915(g), and he fails to make any plausible 22 allegation that he faced imminent danger of serious physical injury at the time he filed this — 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 1520 , 26 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 27 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 rel. Robinson — 28 — 1 || case, he is not entitled to the privilege of proceeding IFP. See Cervantes, 493 F.3d at 1055 ; 2 || Rodriguez, 169 F.3d at 1180 (noting that 28 U.S.C. § 1915 (g) “does not prevent all 3 || prisoners from accessing the courts; it only precludes prisoners with a history of abusing 4 || the legal system from continuing to abuse it while enjoying IFP status’’); see also Franklin 5 ||v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is 6 || itself a matter of privilege and not right.”’). 7 Conclusion and Orders 8 For the reasons set forth above, the Court DENIES Plaintiff's Motion to Proceed 9 || IFP (ECF No. 3) as barred by 28 U.S.C. Section 1915 (g), DISMISSES this civil action 10 || based on Plaintiffs failure to pay the civil filing fee required by 28 U.S.C. Section 1914 (a), 11 || CERTIFIES that an IFP appeal from this Order would not be taken in good faith pursuant 12 ||/to 28 U.S.C. Section 1915 (a)(3), and DIRECTS the Clerk of the Court to close the file. 13 IT IS SO ORDERED. 14 ||Dated: June 23, 2020 € — 15 — Hon. Cathy Ann Bencivengo 16 United States District Judge — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — 5 oo