Bonilla v. Battaglia ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 STEVEN WAYNE BONILLA, Case No.: 3:19-cv-01950-BAS-AGS 11 CDCR #J-48500, 12 (1) DENYING MOTION TO Plaintiff, PROCEED IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915(g) 13 v. [ECF No. 5]; 14 AND 15 JUDGE ANTHONY J. BATTAGLIA, (2) DISMISSING ACTION 16 Defendant. WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 1914(a) 17 18 19 Plaintiff Steven Wayne Bonilla, proceeding pro se and currently incarcerated at San 20 Quentin State Prison, filed a civil action on October 2, 2019. (ECF No. 1.) Plaintiff has 21 not prepaid the $400 filing fee required by 28 U.S.C. § 1914(a) to commence a civil action; 22 instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 23 § 1915(a) (ECF No. 5) and a separate miscellaneous document entitled “Response to Court 24 Ruling.”1 (ECF No. 4.) The Court DENIES Plaintiff’s Motion to Proceed IFP and 25 DISMISSES the action without prejudice for failure to pay the filing fee. 26 1 In this document, which Plaintiff claims is a response “to the court’s many rulings,” alleges that “there 27 can be no subject matter jurisdiction” because “the prosecution committed fraud . . . by falsely claiming that the evidence was obtained pursuant to a federal grand jury subpoena” that did not exist. (See ECF 28 1 I. MOTION TO PROCEED IFP 2 A. Standard of Review 3 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 4 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face 5 … additional hurdle[s].” Id. Specifically, in addition to requiring prisoners to “pay the 6 full amount of a filing fee” in monthly installments or increments as provided by 28 U.S.C. 7 § 1915(a)(3)(b), Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison 8 Litigation Reform Act (“PLRA”) amended § 1915 to preclude the ability 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 grounds that it is frivolous, malicious, or fails to state a claim 11 upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 12 13 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 14 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). 15 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” 16 Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter 17 “Cervantes”) (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful 18 suits may entirely be barred from IFP status under the three strikes rule[.]”). The objective 19 of the PLRA is to further “the congressional goal of reducing frivolous prisoner litigation 20 in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). “[S]ection 21 1915(g)’s cap on prior dismissed claims applies to claims dismissed both before and after 22 the statute’s effective date.” Id. at 1311. 23 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 24 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim.” 25 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted). Such complaints are 26 dismissed for purposes of § 1915(g) “even if the district court styles such dismissal as a 27 denial of the prisoner’s application to file the action without prepayment of the full filing 28 fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). When courts “review a 1 dismissal to determine whether it counts as a strike, the style of the dismissal or the 2 procedural posture is immaterial. Instead, the central question is whether the dismissal 3 ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El-Shaddai v. 4 Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 F.3d 607, 5 615 (4th Cir. 2013)). 6 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 7 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 8 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051– 9 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 10 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”). 11 B. Discussion 12 As a required preliminary matter, the Court has reviewed Plaintiff’s pleading and 13 finds it does not contain any “plausible allegations” to suggest he “faced ‘imminent danger 14 of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 15 U.S.C. § 1915(g)). 16 And while Defendants typically carry the initial burden to produce evidence 17 demonstrating a prisoner is not entitled to proceed IFP, “in some instances, the district 18 court docket may be sufficient to show that a prior dismissal satisfies at least one of the 19 criteria under § 1915(g) and therefore counts as a strike.” Andrews, 398 F.3d at 1119– 20 1120. That is the case here. 21 A court may take judicial notice of its own records. See Molus v. Swan, Case No. 22 3:05-cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United 23 States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)). It also “‘may take notice 24 of proceedings in other courts, both within and without the federal judicial system, if those 25 proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 26 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 27 2002)); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 28 971 F.2d 244, 248 (9th Cir. 1992). 1 Based on the records and court proceedings available on PACER, this Court finds 2 that Plaintiff, while incarcerated, has filed dozens of prisoner civil actions or appeals 3 dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon 4 which relief may be granted. See In re Steven Bonilla, 2012 WL 216401, at *1 (N.D. Cal. 5 Jan. 24, 2012) (noting Plaintiff’s litigation history in the Northern District of California, 6 including the dismissal of 34 pro se civil rights actions between June 1 and October 31, 7 2011 alone, which were dismissed “because the allegations in [his] complaints d[id] not 8 state a claim for relief under § 1983.”); id. at *3 (“The following five actions are 9 DISMISSED without prejudice and without leave to amend for failure to state a claim upon 10 which relief may be granted: Bonilla v. Superior Court of Alameda County, C 11-6306; 11 Bonilla v. Alameda County District Attorney’s Office, C 11-6307; Bonilla v. California 12 Supreme Court, C 12-0026; Bonilla v. Cullen, C 1200027; Bonilla v. California Supreme 13 Court, C 12-0206.”); id. at *3 n.1 (“The Court recently informed Plaintiff that, in 14 accordance with 28 U.S.C. § 1915(g), he no longer qualifies to proceed in forma pauperis 15 in any civil rights action.”) (citing In re Steven Bonilla, Nos. C 11-3180, et seq. CW (PR), 16 Order of Dismissal at 6:23-7:19.)). 17 Accordingly, because Plaintiff has accumulated far more than three “strikes” 18 pursuant to § 1915(g) and fails to make any “plausible allegation” that he faced imminent 19 danger of serious physical injury at the time he filed this case, he is not entitled to the 20 privilege of proceeding IFP. See Cervantes, 493 F.3d at 1055; Rodriguez, 169 F.3d at 1180 21 (noting that 28 U.S.C. § 1915(g) “does not prevent all prisoners from accessing the courts; 22 it only precludes prisoners with a history of abusing the legal system from continuing to 23 abuse it while enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 24 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is itself a matter of privilege and not 25 right.”). 26 II. CONCLUSION AND ORDER 27 For the reasons explained, the Court: 28 1) DENIES Plaintiff’s Motion to Proceed IFP (ECF No. 5) as barred by 28 1 U.S.C. § 1915(g); 2 2) DISMISSES this civil action without prejudice based on Plaintiff’s failure to 3 ||pay the full statutory and administrative $400 civil filing fee required by 28 U.S.C. 4 |/§ 1914(a); 5 3) CERTIFIES that an IFP appeal from this Order would be frivolous and 6 ||therefore would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); and 7 4) DIRECTS the Clerk of the Court to close the file. 8 IT IS SO ORDERED. 9 / 10 || DATED: December 17, 2019 Lill A (Aaphan 6 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5