Bonilla v. The Alameda County District Attorney's Office Civil Conspiracy ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 STEVEN WAYNE BONILLA, Case No.: 3:20-cv-01297-LAB-RBM CDCR #J-48500, 11 ORDER DISMISSING CIVIL Plaintiff, 12 ACTION FOR FAILURE TO PAY vs. FILING FEE REQUIRED BY 13 28 U.S.C. § 1914(a) 14 THE ALAMEDA COUNTY DISTRICT 15 ATTORNEY’S OFFICE, et al., 16 Defendants. 17 18 19 Plaintiff Steven Wayne Bonilla, proceeding pro se and currently incarcerated at 20 San Quentin State Prison has filed a civil complaint requesting an “expedited review” of 21 a “vexatious litigant order.” See Compl., ECF No. 1 at 1. In short, Plaintiff’s Complaint 22 seeks to collaterally attack and void his capital premeditated murder conviction on 23 grounds that it was procured as the result of a conspiracy between Alameda County 24 prosecutors to fraudulently convict him based on a federal grand jury subpoena for phone 25 records he claims “never existed” and was “never served.” Id. at 3. Plaintiff professes his 26 innocence and attaches an “accounting” of damages for his wrongful conviction 27 estimated at more than two billon dollars. Id. at 11. 28 / / / 1 Plaintiff did not file a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 2 U.S.C. § 1915(a) together with his Complaint, nor has he paid the initial civil filing fee 3 required by 28 U.S.C. § 1914(a). 4 I. Failure to Pay Filing Fee or Request IFP Status 5 All parties instituting any civil action, suit or proceeding in a district court of the 6 United States, except an application for writ of habeas corpus, must pay a filing fee of 7 $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 8 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 9 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 10 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, the Prison Litigation Reform Act’s 11 (“PLRA”) amendments to § 1915 require that all prisoners who proceed IFP to pay the 12 entire fee in “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 13 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and 14 regardless of whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & 15 (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 16 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment 17 of fees to file an affidavit that includes a statement of all assets possessed and 18 demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 19 Cir. 2015). In support of this affidavit, the PLRA also requires prisoners to submit a 20 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 21 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 22 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 23 trust account statement, the Court assesses an initial payment of 20% of (a) the average 24 monthly deposits in the account for the past six months, or (b) the average monthly 25 balance in the account for the past six months, whichever is greater, unless the prisoner 26 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 27 custody of the prisoner then collects subsequent payments, assessed at 20% of the 28 preceding month’s income, in any month in which his account exceeds $10, and forwards 1 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 2 Bruce, 136 S. Ct. at 629. 3 Because Plaintiff has neither paid the filing fee required by 28 U.S.C. § 1914(a) to 4 commence a civil action, nor filed a properly supported Motion to Proceed IFP pursuant 5 to 28 U.S.C. § 1915(a), his case cannot proceed. See 28 U.S.C. § 1914(a); Andrews, 493 6 F.3d at 1051. 7 II. “Three-Strikes” Bar 8 Moreover, even if Plaintiff had filed a Motion to Proceed IFP, the Court would 9 deny it because he is no longer entitled to that privilege.1 10 A. Standard of Review 11 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cnty. 12 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners, like Plaintiff, however, 13 “face an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount 14 of a filing fee,” in “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), Williams v. 15 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act 16 (“PLRA”) amended Section 1915 to preclude the privilege to proceed IFP: 17 . . . if [a] prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or 18 appeal in a court of the United States that was dismissed on the 19 grounds that it is frivolous, malicious, or fails to state a claim upon which relief can be granted, unless the prisoner is under 20 imminent danger of serious physical injury. 21 22 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 23 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). 24 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” 25 Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter 26 27 1 In fact, Plaintiff appears to acknowledge he is not entitled to proceed IFP by referring to 28 1 “Cervantes”) (stating that under the PLRA, “[p]risoners who have repeatedly brought 2 unsuccessful suits may entirely be barred from IFP status under the three strikes 3 rule ....”). The objective of the PLRA is to further “the congressional goal of reducing 4 frivolous prisoner litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 5 (9th Cir. 1997). “[S]ection 1915(g)’s cap on prior dismissed claims applies to claims 6 dismissed both before and after the statute’s effective date.” Id. at 1311. 7 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, 8 which were dismissed on the ground that they were frivolous, malicious, or failed to state 9 a claim,” Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the 10 district court styles such dismissal as a denial of the prisoner’s application to file the 11 action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 12 (9th Cir. 2008). When courts “review a dismissal to determine whether it counts as a 13 strike, the style of the dismissal or the procedural posture is immaterial. Instead, the 14 central question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or 15 failure to state a claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) 16 (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). “When ... presented with 17 multiple claims within a single action,” however, courts may “assess a PLRA strike only 18 when the case as a whole is dismissed for a qualifying reason under the Act.” Hoffman v. 19 Pulido, 928 F.3d 1147, 1152 (9th Cir. 2019) (citing Washington v. L.A. Cnty. Sheriff’s 20 Dep’t, 833 F.3d 1048, 1057 (9th Cir. 2016)). 21 Once a prisoner has accumulated three strikes, he is prohibited by § 1915(g) from 22 pursuing any other IFP action in federal court unless he can show he is facing “imminent 23 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051- 24 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 25 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of 26 filing.”). 27 / / / 28 / / / 1 B. Discussion 2 The Court has reviewed Plaintiff’s Complaint and finds it does not contain any 3 “plausible allegations” to suggest that he “faced ‘imminent danger of serious physical 4 injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). 5 Rather, Plaintiff complains that a “federal grand jury subpoena for [his] phone records … 6 never existed,” and was “never served,” and that therefore his conviction was the product 7 of a conspiracy to wrongfully charge and fraudulently convict him. See Compl. at 2‒4. 8 While Plaintiff has not moved to proceed IFP, and Defendants typically carry the 9 initial burden to produce evidence demonstrating a prisoner is not entitled to proceed IFP, 10 Andrews, 398 F.3d at 1119, “in some instances, the district court docket may be sufficient 11 to show that [] prior dismissal[s] satisfy[y] at least one of the criteria under § 1915(g) and 12 therefore count[] as … strike[s].” Id. at 1120. 13 Based on the dockets of many court proceedings publicly available on PACER,2 14 this Court finds that Plaintiff Steven Wayne Bonilla, identified as CDCR #J-48500, while 15 incarcerated, has had dozens of prior prisoner civil actions or appeals dismissed on the 16 grounds that they were frivolous, malicious, or failed to state a claim upon which relief 17 may be granted. See, e.g., In re Steven Bonilla, 2012 WL 216401, at *1 (N.D. Cal. Jan. 18 24, 2012) (noting Plaintiff’s litigation history in the Northern District of California, 19 including the dismissal of 34 pro se civil rights actions between June 1 and October 31, 20 2011 alone, which were dismissed “because the allegations in [his] complaints d[id] not 21 22 23 2 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 24 v. Author Servs., 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros. Entm’t 25 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 system, if those proceedings 26 have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 27 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 244, 28 1 state a claim for relief under § 1983.”); id. at *3 (“The following five actions are 2 DISMISSED without prejudice and without leave to amend for failure to state a claim 3 upon which relief may be granted: Bonilla v. Superior Court of Alameda County, C 11- 4 6306; Bonilla v. Alameda County District Attorney’s Office, C 11-6307; Bonilla v. 5 California Supreme Court, C 12-0026; Bonilla v. Cullen, C 12-0027; Bonilla v. 6 California Supreme Court, C 12-0206.”); id. at *3 n.1 (“The Court recently informed 7 Plaintiff that, in accordance with 28 U.S.C. § 1915(g), he no longer qualifies to proceed 8 in forma pauperis in any civil rights action.” (citing In re Steven Bonilla, Nos. C 11-3180, 9 et seq. CW (PR), Order of Dismissal at 6:23-7:19)). 10 Accordingly, because Plaintiff has, while incarcerated, accumulated far more than 11 the three “strikes” permitted by § 1915(g), and he fails to make any plausible allegation 12 that he faced imminent danger of serious physical injury at the time he filed this case, he 13 is not entitled to the privilege of proceeding IFP. Given his litigation history, and 14 considering the allegations in his Complaint, the Court concludes that permitting him 15 leave to proceed IFP would simply be futile. See Cervantes, 493 F.3d at 1055; Rodriguez, 16 169 F.3d at 1180 (noting that 28 U.S.C. § 1915(g) “does not prevent all prisoners from 17 accessing the courts; it only precludes prisoners with a history of abusing the legal system 18 from continuing to abuse it while enjoying IFP status”); see also Franklin v. Murphy, 745 19 2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is itself a matter of 20 privilege and not right.”). 21 “Having afforded plaintiff so much guidance and so many opportunities in the past, 22 the court will not continue to utilize scant judicial resources on what is clearly a futile 23 claim.” Harvey v. Nevada, No. 2:19-CV-01123-TLN-CKD-PS, 2020 WL 731631, at *11 24 (E.D. Cal. Feb. 13, 2020), report and recommendation adopted, No. 2:19-CV-01123- 25 TLN-CKD, 2020 WL 1433019 (E.D. Cal. Mar. 24, 2020). 26 / / / 27 / / / 28 / / / 1 Conclusion and Orders 2 For the reasons discussed, the Court: 3 1) DISMISSES this civil action in its entirety based on Plaintiffs failure to 4 || pay the civil filing fee required by 28 U.S.C. § 1914(a); 5 2) CERTIFIES that an IFP appeal from this Order would be frivolous and not 6 || taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); and 7 3) DIRECTS the Clerk of the Court to enter a judgment of dismissal and to 8 || close the file. 9 IT IS SO ORDERED. 10 11 || Dated: July 20, 2020 (duu A. (byw 12 Honorable Larry Alan Burns 13 Chief United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28