Bonilla v. U.S. District Court ( 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-01155-MMA-MSB CDCR #J-48500, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILURE TO PAY vs. FILING FEE REQUIRED BY 14 28 U.S.C. § 1914(a) 15 U.S. DISTRICT COURT, 16 Defendant. 17 18 19 20 21 Plaintiff Steven Wayne Bonilla, proceeding pro se and currently incarcerated at 22 San Quentin State Prison has filed a civil complaint “Attacking and Challenging the 23 Vexatious Litigant Claim.” See Doc. No. 1 (“Compl.”) at 1. Plaintiff contends the U.S. 24 District Court has “ignore[d]” its duty to exercise its subject matter jurisdiction by 25 refusing to void his Alameda County criminal conviction and sentence. Id. at 1‒3. 26 Plaintiff did not file a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 27 U.S.C. § 1915(a) together with his Complaint, nor has he paid the initial civil filing fee 28 required by 28 U.S.C. § 1914(a). 1 I. Failure to Pay Filing Fee or Request IFP Status 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, the Prison Litigation Reform Act’s 8 (“PLRA”) amendments to § 1915 require that all prisoners who proceed IFP to pay the 9 entire fee in “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 10 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and 11 regardless of whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & 12 (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 13 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment 14 of fees to file an affidavit that includes a statement of all assets possessed and 15 demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 16 Cir. 2015). In support of this affidavit, the PLRA also requires prisoners to submit a 17 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 18 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 19 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 20 trust account statement, the Court assesses an initial payment of 20% of (a) the average 21 monthly deposits in the account for the past six months, or (b) the average monthly 22 balance in the account for the past six months, whichever is greater, unless the prisoner 23 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 24 having custody of the prisoner then collects subsequent payments, assessed at 20% of the 25 preceding month’s income, in any month in which his account exceeds $10, and forwards 26 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 27 1915(b)(2); Bruce, 136 S. Ct. at 629. 28 Because Plaintiff has neither paid the filing fee required by 28 U.S.C. § 1914(a) to 1 commence a civil action, nor filed a properly supported Motion to Proceed IFP pursuant 2 to 28 U.S.C. § 1915(a), his case cannot proceed. See 28 U.S.C. § 1914(a); Andrews, 493 3 F.3d at 1051. 4 II. “Three-Strikes” Bar 5 Moreover, even if Plaintiff had filed a Motion to Proceed IFP, the Court finds he is 6 not entitled to that privilege.1 7 A. Standard of Review 8 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cnty. 9 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners, like Plaintiff, however, 10 “face an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount 11 of a filing fee,” in “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), Williams v. 12 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act 13 (“PLRA”) amended Section 1915 to preclude the privilege to proceed IFP: 14 . . . if [a] prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or 15 appeal in a court of the United States that was dismissed on the 16 grounds that it is frivolous, malicious, or fails to state a claim upon which relief can be granted, unless the prisoner is under 17 imminent danger of serious physical injury. 18 19 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 20 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). 21 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” 22 Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter 23 “Cervantes”) (stating that under the PLRA, “[p]risoners who have repeatedly brought 24 unsuccessful suits may entirely be barred from IFP status under the three strikes 25 rule ....”). The objective of the PLRA is to further “the congressional goal of reducing 26 27 1 In fact, Plaintiff appears to acknowledge he is no longer entitled to proceed IFP by referring to his 28 1 frivolous prisoner litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 2 (9th Cir. 1997). “[S]ection 1915(g)’s cap on prior dismissed claims applies to claims 3 dismissed both before and after the statute’s effective date.” Id. at 1311. 4 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, 5 which were dismissed on the ground that they were frivolous, malicious, or failed to state 6 a claim,” Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the 7 district court styles such dismissal as a denial of the prisoner’s application to file the 8 action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 9 (9th Cir. 2008). When courts “review a dismissal to determine whether it counts as a 10 strike, the style of the dismissal or the procedural posture is immaterial. Instead, the 11 central question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or 12 failure to state a claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) 13 (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). “When . . . presented with 14 multiple claims within a single action,” however, courts may “assess a PLRA strike only 15 when the case as a whole is dismissed for a qualifying reason under the Act.” Hoffman v. 16 Pulido, 928 F.3d 1147, 1152 (9th Cir. 2019) (citing Washington v. L.A. Cnty. Sheriff’s 17 Dep’t, 833 F.3d 1048, 1057 (9th Cir. 2016)). 18 Once a prisoner has accumulated three strikes, he is prohibited by § 1915(g) from 19 pursuing any other IFP action in federal court unless he can show he is facing “imminent 20 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 21 1051-52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible 22 allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time 23 of filing.”). 24 B. Discussion 25 The Court has reviewed Plaintiff’s Complaint and finds it does not contain any 26 “plausible allegations” to suggest that he “faced ‘imminent danger of serious physical 27 injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). 28 Rather, Plaintiff alleges that “the federal grand jury subpoena for the [his] phone records . 1 . . was never entered on the court docket as an exhibit,” was “never served,” and, in fact, 2 never existed. See Compl. at 2. He further contends the Alameda County Superior Court 3 “collu[ded] with the prosecution” and lacked “subject matter jurisdiction” over his case; 4 therefore, his conviction must be declared void. Id. at 3. 5 While Plaintiff has not moved to proceed IFP, and Defendants typically carry the 6 initial burden to produce evidence demonstrating a prisoner is not entitled to proceed IFP, 7 Andrews, 398 F.3d at 1119, “in some instances, the district court docket may be sufficient 8 to show that [] prior dismissal[s] satisfy[y] at least one of the criteria under § 1915(g) and 9 therefore count[] as . . . strike[s].” Id. at 1120. 10 Based on the dockets of many court proceedings publicly available on PACER,2 11 this Court finds that Plaintiff Steven Wayne Bonilla, identified as CDCR #J-48500, while 12 incarcerated, has had dozens of prior prisoner civil actions or appeals dismissed on the 13 grounds that they were frivolous, malicious, or failed to state a claim upon which relief 14 may be granted. See, e.g., In re Steven Bonilla, 2012 WL 216401, at *1 (N.D. Cal. Jan. 15 24, 2012) (noting Plaintiff’s litigation history in the Northern District of California, 16 including the dismissal of 34 pro se civil rights actions between June 1 and October 31, 17 2011 alone, which were dismissed “because the allegations in [his] complaints d[id] not 18 state a claim for relief under § 1983.”); id. at *3 (“The following five actions are 19 DISMISSED without prejudice and without leave to amend for failure to state a claim 20 upon which relief may be granted: Bonilla v. Superior Court of Alameda County, C 11- 21 6306; Bonilla v. Alameda County District Attorney’s Office, C 11-6307; Bonilla v. 22 23 24 2 A court may take judicial notice of its own records, see Molus v. Swan, No. 3:05-cv-00452-MMA- 25 WMc, 2009 WL 160937, at *2 (S.D. Cal. Jan. 22, 2009) (citing United States v. Author Servs., 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. 26 Cal. 2015), and “‘may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 27 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 28 1 California Supreme Court, C 12-0026; Bonilla v. Cullen, C 12-0027; Bonilla v. 2 California Supreme Court, C 12-0206.”); id. at *3 n.1 (“The Court recently informed 3 Plaintiff that, in accordance with 28 U.S.C. § 1915(g), he no longer qualifies to proceed 4 in forma pauperis in any civil rights action.” (citing In re Steven Bonilla, Nos. C 11-3180, 5 et seq. CW (PR), Order of Dismissal at 6:23-7:19)). 6 Accordingly, because Plaintiff has, while incarcerated, accumulated far more than 7 the three “strikes” permitted by § 1915(g), and he fails to make any plausible allegation 8 that he faced imminent danger of serious physical injury at the time he filed this case, he 9 is not entitled to the privilege of proceeding IFP. Given his litigation history, and 10 considering the allegations in his Complaint, the Court concludes that permitting him 11 leave to proceed IFP would simply be futile. See Cervantes, 493 F.3d at 1055; 12 Rodriguez, 169 F.3d at 1180 (noting that 28 U.S.C. § 1915(g) “does not prevent all 13 prisoners from accessing the courts; it only precludes prisoners with a history of abusing 14 the legal system from continuing to abuse it while enjoying IFP status”); see also 15 Franklin v. Murphy, 745 2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed 16 IFP is itself a matter of privilege and not right.”). 17 “Having afforded plaintiff so much guidance and so many opportunities in the past, 18 the court will not continue to utilize scant judicial resources on what is clearly a futile 19 claim.” Harvey v. Nevada, No. 2:19-CV-01123-TLN-CKD-PS, 2020 WL 731631, at *11 20 (E.D. Cal. Feb. 13, 2020), report and recommendation adopted, No. 2:19-CV-01123- 21 TLN-CKD, 2020 WL 1433019 (E.D. Cal. Mar. 24, 2020). 22 III. Conclusion and Orders 23 For the reasons discussed, the Court: 24 1) DISMISSES this civil action in its entirety based on Plaintiff’s failure to pay 25 the civil filing fee required by 28 U.S.C. § 1914(a); 26 2) CERTIFIES that an IFP appeal from this Order would be frivolous and not 27 taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); and 28 / / / 1 3) DIRECTS the Clerk of the Court to enter a judgment of dismissal and to close 2 || the file. 3 IT IS SO ORDERED. 4 || Dated: June 24, 2020 Lb. be Du : / 5 HON. MICHAEL M. ANELLO 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28