Bonilla v. Battaglia ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEVEN WAYNE BONILLA, Case No.: 3:19-cv-01900-MMA-RBM CDCR #J-48500, 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. AS BARRED BY 28 U.S.C. § 1915(g); 14 JUDGE ANTHONY BATTAGLIA, et al., 15 [Doc. No. 4] Defendants. 16 DISMISSING CIVIL ACTION 17 WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE 18 REQUIRED BY 28 U.S.C. § 1914(a) 19 20 Plaintiff STEVEN WAYNE BONILLA, currently incarcerated at San Quentin 21 State Prison (“SQ”) located in San Quentin, California, and proceeding pro se, has filed a 22 civil action. See Doc. No. 1.1 Plaintiff did not prepay the filing fee required to 23 24 25 1 The Court takes judicial notice that over the course of the last 18 years, Plaintiff has filed more than 1,000 separate civil rights actions and habeas corpus petitions, primarily in the Northern District of 26 California, which is where Alameda County is situated, where he was convicted by jury of first degree murder with special circumstances and sentenced to death, and where he is currently incarcerated. See 27 People v. Bonilla, 41 Cal. 4th 313 (2007); https://pcl.uscourts.gov/pcl/pages/search/results/parties.jsf?sid=f29f4a3f9f17408 e8076c92cfe63a2a0 28 1 commence a civil action at the time he filed his Complaint; instead, he has filed a Motion 2 for Leave to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (Doc. 3 No. 4). 4 I. Motion to Proceed IFP 5 A. Standard of Review 6 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 7 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, 8 “face … additional hurdle[s].” Id. Specifically, in addition to requiring prisoners to “pay 9 the full amount of a filing fee,” in “monthly installments” or “increments” as provided by 10 28 U.S.C. § 1915(a)(3)(b), Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); 11 Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform 12 Act (“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”) (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful 23 suits may entirely be barred from IFP status under the three strikes rule[.]”). The 24 objective of the PLRA is to further “the congressional goal of reducing frivolous prisoner 25 litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 26 27 notice of proceedings in other courts, both within and without the federal judicial system, if those 28 1 “[S]ection 1915(g)’s cap on prior dismissed claims applies to claims dismissed both 2 before and after the statute’s effective date.” Id. at 1311. 3 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, 4 which were dismissed on the ground that they were frivolous, malicious, or failed to state 5 a claim,” Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the 6 district court styles such dismissal as a denial of the prisoner’s application to file the 7 action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 8 (9th Cir. 2008). When courts “review a dismissal to determine whether it counts as a 9 strike, the style of the dismissal or the procedural posture is immaterial. Instead, the 10 central question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or 11 failure to state a claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) 12 (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). 13 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 14 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 15 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 16 1051-52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible 17 allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time 18 of filing.”). 19 B. Discussion 20 As an initial matter, the Court has reviewed Plaintiff’s Complaint, and finds it does 21 not contain any “plausible allegations” to suggest he “faced ‘imminent danger of serious 22 physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. 23 § 1915(g)). 24 And while Defendants typically carry the initial burden to produce evidence 25 demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in 26 some instances, the district court docket may be sufficient to show that a prior dismissal 27 satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id. 28 at 1120. That is the case here. 1 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case 2 No. 3:05-cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing 3 United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. 4 Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take 5 notice of proceedings in other courts, both within and without the federal judicial system, 6 if those proceedings have a direct relation to matters at issue.’” Bias, 508 F.3d at 1225 7 (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)); see also 8 United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 9 248 (9th Cir. 1992). 10 Based on the records and court proceedings available on PACER, this Court takes 11 judicial notice that Plaintiff Steven Wayne Bonilla, identified as CDCR #J-48500, while 12 incarcerated, has had dozens of prisoner civil actions or appeals dismissed on the grounds 13 that they were frivolous, malicious, or failed to state a claim upon which relief may be 14 granted. See In re Steven Bonilla, 2012 WL 216401, at *1 (N.D. Cal. Jan. 24, 2012) 15 (noting Plaintiff’s litigation history in the Northern District of California, including the 16 dismissal of 34 pro se civil rights actions between June 1 and October 31, 2011 alone, 17 which were dismissed “because the allegations in [his] complaints d[id] not state a claim 18 for relief under § 1983.”); id. at *3 (“The following five actions are DISMISSED without 19 prejudice and without leave to amend for failure to state a claim upon which relief may 20 be granted: Bonilla v. Superior Court of Alameda County, C 11-6306; Bonilla v. Alameda 21 County District Attorney’s Office, C 11-6307; Bonilla v. California Supreme Court, C 12- 22 0026; Bonilla v. Cullen, C 1200027; Bonilla v. California Supreme Court, C 12-0206.”); 23 id. at *3 n.1 (“The Court recently informed Plaintiff that, in accordance with 28 U.S.C. 24 § 1915(g), he no longer qualifies to proceed in forma pauperis in any civil rights action.” 25 (citing In re Steven Bonilla, Nos. C 11-3180, et seq. CW (PR), Order of Dismissal at 26 6:23-7:19.)); see also Bonilla v. Hernandez, No. 3:18-CV-978-JLS-BLM, 2018 WL 27 3817864, at *3 (S.D. Cal. Aug. 10, 2018) (denying Plaintiff leave to proceed IFP as 28 barred by 28 U.S.C. § 1915(g)); Bonilla v. Plourd, No. 3:18-CV-0954-BAS-JLB, 2018 1 || WL 3656105, at *3 (S.D. Cal. Aug. 1, 2018) (same). 2 Accordingly, because Plaintiff has, while incarcerated, accumulated far more than 3 || three “strikes” pursuant to § 1915(g), and he fails to make a “plausible allegation” that he 4 ||faced imminent danger of serious physical injury at the time he filed his Complaint, he is 5 || not entitled to the privilege of proceeding IFP in this civil action. See Cervantes, 493 6 || F.3d at 1055; Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 7 U.S.C. § 1915(g) “does not prevent all prisoners from accessing the courts; it only 8 || precludes prisoners with a history of abusing the legal system from continuing to abuse it 9 || while enjoying IFP status’’); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 10 || 1984) (“[C]ourt permission to proceed IFP is itself a matter of privilege and not right.”). 11 |/II. Conclusion and Orders 12 For the reasons explained, the Court: 13 1) DENIES Plaintiffs Motion to Proceed IFP (Doc. No. 4) as barred by 28 14 |/U.S.C. § 1915(g); 15 2) DISMISSES this civil action without prejudice based on Plaintiff's failure 16 pay the full statutory and administrative $400 civil filing fee required by 28 U.S.C. 17 1914(a); 18 3) | CERTIFIES that an IFP appeal from this Order would be frivolous and 19 || therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); and 20 4) DIRECTS the Clerk of Court to close the file. 21 IT IS SO ORDERED. 22 ||DATE: December 2, 2019 Mikel ld - 2 33 HON. MICHAEL M. ANELLO United States District Judge 24 25 26 27 28 5