Bonilla v. Bencivengo ( 2020 )

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-00937-BAS-LL CDCR #J-48500, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILURE TO PAY vs. FILING FEE REQUIRED BY 28 14 U.S.C. § 1914(a) 15 JUDGE CATHY ANN BENCIVENGO, 16 et al., 17 Defendants. 18 19 Plaintiff Steven Wayne Bonilla, proceeding pro se and currently incarcerated at San 20 Quentin State Prison, has filed a civil action pursuant to 42 U.S.C. § 1983. Plaintiff names 21 two federal judges as Defendants and seeks to declare his Alameda County judgment void 22 on jurisdictional grounds. (See “Compl.,” ECF No. 1.) Plaintiff has not filed a Motion to 23 Proceed In Forma Pauperis (“IFP”) in this matter, nor has he filed the initial civil filing fee 24 required by 28 U.S.C. § 1914(a). 25 I. Failure to Pay Filing Fee or Request IFP Status 26 All parties instituting any civil action, suit or proceeding in a district court of the 27 United States, except an application for writ of habeas corpus, must pay a filing fee of 28 $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 1 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 2 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 3 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, the Prison Litigation Reform Act’s 4 (“PLRA”) amendments to § 1915 require that all prisoners who proceed IFP to pay the 5 entire fee in “increments” or “installments,” Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); 6 Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether their 7 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 8 F.3d 844, 847 (9th Cir. 2002). 9 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment 10 of fees to file an affidavit that includes a statement of all assets possessed and demonstrates 11 an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In 12 support of this affidavit, the PLRA also requires prisoners to submit a “certified copy of 13 the trust fund account statement (or institutional equivalent) for . . . the 6-month period 14 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 15 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the 16 Court assesses an initial payment of 20% of (a) the average monthly deposits in the account 17 for the past six months, or (b) the average monthly balance in the account for the past six 18 months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. 19 § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then 20 collects subsequent payments, assessed at 20% of the preceding month’s income, in any 21 month in which his account exceeds $10, and forwards those payments to the Court until 22 the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629. 23 Because Plaintiff has neither paid the filing fee required by 28 U.S.C. § 1914(a) to 24 commence a civil action, nor filed a properly supported Motion to Proceed IFP pursuant 25 to 28 U.S.C. § 1915(a), his case cannot proceed. See 28 U.S.C. § 1914(a); Andrews, 493 26 F.3d at 1051. 27 II. Motion to Proceed IFP 28 Even if Plaintiff had filed a Motion to Proceed IFP, the Court finds that he is not 1 entitled to do so in this action for the reasons set forth below. 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, “face 5 an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a 6 filing fee,” in “increments” as provided by 28 U.S.C. Section 1915(a)(3)(b), Williams v. 7 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act (“PLRA”) 8 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 appeal in a court of the United 10 States that was dismissed on the grounds that it is frivolous, malicious, or fails 11 to state a claim 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”) (stating that under the PLRA, “[p]risoners who have repeatedly brought 18 unsuccessful suits may entirely be barred from IFP status under the three strikes 19 rule . . . .”). The objective of the PLRA is to further “the congressional goal of reducing 20 frivolous prisoner litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th 21 Cir. 1997). “[S]ection 1915(g)’s cap on prior dismissed claims applies to claims dismissed 22 both before and after 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, “even if the district court styles such dismissal as a denial 26 of the prisoner’s application to file the action without prepayment of the full filing fee.” 27 O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). When courts “review a dismissal to 28 determine whether it counts as a strike, the style of the dismissal or the procedural posture 1 is immaterial. Instead, the central question is whether the dismissal ‘rang the PLRA bells 2 of frivolous, malicious, or failure to state a claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 3 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). “When 4 . . . presented with multiple claims within a single action,” however, courts may “assess a 5 PLRA strike only when the case as a whole is dismissed for a qualifying reason under the 6 Act.” Hoffman v. Pulido, 928 F.3d 1147, 1152 (9th Cir. 2019) (citing Washington v. L.A. 7 Cnty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th Cir. 2016)). 8 Once a prisoner has accumulated three strikes, he is prohibited by Section 1915(g) 9 from pursuing any other IFP action in federal court unless he can show he is facing 10 “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 11 F.3d at 1051–52 (noting Section 1915(g)’s exception for IFP complaints which “make[] a 12 plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ at 13 the time of filing.”). 14 B. Discussion 15 The Court has reviewed Plaintiff’s Complaint and finds that it does not contain any 16 “plausible allegations” to suggest that he “faced ‘imminent danger of serious physical 17 injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). 18 Rather, Plaintiff alleges that “the federal grand jury subpoena for the Plaintiff’s phone 19 records . . . never existed,” and therefore there was no valid jurisdiction exercised over his 20 case and his conviction is void. (See Compl.) 21 While Plaintiff has not moved to proceed IFP, the Court finds that it would be futile 22 for Plaintiff to do so. While Defendants typically carry the initial burden to produce 23 evidence demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 24 1119, “in some instances, the district court docket may be sufficient to show that a prior 25 dismissal satisfies at least one on the criteria under § 1915(g) and therefore counts as a 26 strike.” Id. at 1120. That is true here. 27 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) (noting 6 Plaintiff’s litigation history in the Northern District of California, including the dismissal 7 of 34 pro se civil rights actions between June 1 and October 31, 2011 alone, which were 8 dismissed “because the allegations in [his] complaints d[id] not state a claim for relief 9 under § 1983.”); id. at *3 (“The following five actions are DISMISSED without prejudice 10 and without leave to amend for failure to state a claim upon which relief may be granted: 11 Bonilla v. Superior Court of Alameda County, C 11-6306; Bonilla v. Alameda County 12 District Attorney’s Office, C 11-6307; Bonilla v. California Supreme Court, C 12-0026; 13 Bonilla v. Cullen, C 12-0027; Bonilla v. California Supreme Court, C 12-0206.”); id. at *3 14 n.1 (“The Court recently informed Plaintiff that, in accordance with 28 U.S.C. § 1915(g), 15 he no longer qualifies to proceed in forma pauperis in any civil rights action.” (citing In re 16 Steven Bonilla, Nos. C 11-3180, et seq. CW (PR), Order of Dismissal at 6:23-7:19)). 17 Accordingly, because Plaintiff has, while incarcerated, accumulated far more than 18 the three “strikes” permitted by Section 1915(g), and he fails to make any plausible 19 allegation that he faced imminent danger of serious physical injury at the time he filed this 20 case, he is not entitled to the privilege of proceeding IFP. See Cervantes, 493 F.3d at 1055; 21 Rodriguez, 169 F.3d at 1180 (noting that 28 U.S.C. Section 1915(g) “does not prevent all 22 prisoners from accessing the courts; it only precludes prisoners with a history of abusing 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 || the legal system from continuing to abuse it while enjoying IFP status”); see also Franklin 2 Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is 3 ||itself a matter of privilege and not right.’’). 4 ||. Conclusion and Orders 5 For the reasons set forth above, 6 1. The Court DISMISSES this case based on Plaintiff's failure to pay the civil filing 7 fee required by 28 U.S.C. Section 1914(a); and 8 2. CERTIFIES that an IFP appeal from this Order would not be taken in good faith 9 pursuant to 28 U.S.C. Section 1915(a)(3); and 10 3. DIRECTS the Clerk of the Court to close the file. 11 IT IS SO ORDERED. 12 13 || DATED: June 19, 2020 (pita (Bupha 14 Hon. Cynthia Bashant 5 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28