Bonilla v. Battaglia ( 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-1150 JLS (AHG) 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 ANTHONY J. BATTAGLIA, et al., 16 Defendants. 17 18 19 20 Plaintiff Steven Wayne Bonilla, proceeding pro se and currently incarcerated at San 21 Quentin State Prison has filed a civil complaint “Reviewing Court Judges Ignoring 22 Challenges Attacking the Trial Court’s Jurisdiction Due to Private Prior Agreement with 23 the Prosecution to Decide All Issues Raised by Petitioner in Favor of the Prosecution.” See 24 ECF No. 1 (“Compl.”) at 1. Plaintiff contends that the Defendant Judges he is suing have 25 engaged in a conspiracy to rule against him. 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, 136 S. Ct. 627, 629 (2016); 10 Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether their 11 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 12 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 demonstrates 15 an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In 16 support of this affidavit, the PLRA also requires prisoners to submit a “certified copy of 17 the trust fund account statement (or institutional equivalent) for . . . the 6-month period 18 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 19 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the 20 Court assesses an initial payment of 20% of (a) the average monthly deposits in the account 21 for the past six months, or (b) the average monthly balance in the account for the past six 22 months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. 23 § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then 24 collects subsequent payments, assessed at 20% of the preceding month’s income, in any 25 month in which his account exceeds $10, and forwards those payments to the Court until 26 the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629. 27 Because Plaintiff has neither paid the filing fee required by 28 U.S.C. § 1914(a) to 28 commence a civil action, nor filed a properly supported Motion to Proceed IFP pursuant to 1 28 U.S.C. § 1915(a), his case cannot proceed. See 28 U.S.C. § 1914(a); Andrews, 493 F.3d 2 at 1051. 3 II. “Three-Strikes” Bar 4 Moreover, even if Plaintiff had filed a Motion to Proceed IFP, the Court finds he is 5 not entitled to that privilege. 6 A. Legal Standard 7 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cty. 8 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners, however, “face an additional 9 hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a filing fee,” in 10 “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), Williams v. Paramo, 775 F.3d 11 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act (“PLRA”) amended Section 12 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”) (stating that under the PLRA, “[p]risoners who have repeatedly brought 23 unsuccessful 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 “[S]ection 1915(g)’s cap on prior dismissed claims applies to claims dismissed both before 27 and after the statute’s effective date.” Id. at 1311. 28 / / / 1 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 2 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 3 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 4 styles such dismissal as a denial of the prisoner’s application to file the action without 5 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 6 When courts “review a dismissal to determine whether it counts as a strike, the style of the 7 dismissal or the procedural posture is immaterial. Instead, the central question is whether 8 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 9 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 10 F.3d 607, 615 (4th Cir. 2013)). “When . . . presented with multiple claims within a single 11 action,” however, courts may “assess a PLRA strike only when the case as a whole is 12 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d 1147, 1152 13 (9th Cir. 2019) (citing Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th 14 Cir. 2016)). 15 Once a prisoner has accumulated three strikes, he is prohibited by § 1915(g) from 16 pursuing any other IFP action in federal court unless he can show he is facing “imminent 17 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 18 1051–52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible 19 allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time 20 of filing.”). 21 B. Discussion 22 The Court has reviewed Plaintiff’s Complaint and finds it does not contain any 23 “plausible allegations” to suggest that he “faced ‘imminent danger of serious physical 24 injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). 25 Rather, Plaintiff alleges that “the federal grand jury subpoena for [his] phone records . . . 26 was never entered on the court docket as an exhibit,” was “never served,” and, in fact, 27 never existed. See Compl. at 3–8. He further contends the the Alameda County Superior 28 /// 1 Court “collu[ded] with the prosecution” and lacked “subject matter jurisdiction” over his 2 case; therefore, his conviction must be declared void. Id. at 3. 3 While Plaintiff has not moved to proceed IFP, and Defendants typically carry the 4 initial burden to produce evidence demonstrating a prisoner is not entitled to proceed IFP, 5 Andrews, 398 F.3d at 1119, “in some instances, the district court docket may be sufficient 6 to show that [] prior dismissal[s] satisfy[y] at least one of the criteria under § 1915(g) and 7 therefore count[] as . . . strike[s].” Id. at 1120. 8 Based on the dockets of many court proceedings publicly available on PACER,1 this 9 Court finds that Plaintiff Steven Wayne Bonilla, identified as CDCR #J-48500, while 10 incarcerated, has had dozens of prior prisoner civil actions or appeals dismissed on the 11 grounds that they were frivolous, malicious, or failed to state a claim upon which relief 12 may be granted. See, e.g., In re Steven Bonilla, 2012 WL 216401, at *1 (N.D. Cal. Jan. 24, 13 2012) (noting Plaintiff’s litigation history in the Northern District of California, including 14 the dismissal of 34 pro se civil rights actions between June 1 and October 31, 2011 alone, 15 which were dismissed “because the allegations in [his] complaints d[id] not state a claim 16 for relief under § 1983.”); id. at *3 (“The following five actions are DISMISSED without 17 prejudice and without leave to amend for failure to state a claim upon which relief may be 18 granted: Bonilla v. Superior Court of Alameda County, C 11-6306; Bonilla v. Alameda 19 County District Attorney’s Office, C 11-6307; Bonilla v. California Supreme Court, C 12- 20 0026; Bonilla v. Cullen, C 12-0027; Bonilla v. California Supreme Court, C 12-0206.”); 21 id. at *3 n.1 (“The Court recently informed Plaintiff that, in accordance with 28 U.S.C. 22 23 24 1 A court may take judicial notice of its own records, see Molus v. Swan, No. 3:05-cv-00452-MMA-WMc, 25 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. Cal. 26 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 F.3d 1212, 27 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 244, 248 (9th Cir. 28 1 § 1915(g), he no longer qualifies to proceed in forma pauperis in any civil rights action.” 2 (citing In re Steven Bonilla, Nos. C 11-3180, et seq. CW (PR), Order of Dismissal at 3 6:23–7:19)). 4 Accordingly, because Plaintiff has, while incarcerated, accumulated far more than 5 the three “strikes” permitted by § 1915(g), and he fails to make any plausible allegation 6 that he faced imminent danger of serious physical injury at the time he filed this case, he 7 is not entitled to the privilege of proceeding IFP. Given his litigation history, and 8 considering the allegations in his Complaint, the Court concludes that permitting him leave 9 to proceed IFP would simply be futile. See Cervantes, 493 F.3d at 1055; Rodriguez, 169 10 F.3d at 1180 (noting that 28 U.S.C. § 1915(g) “does not prevent all prisoners from 11 accessing the courts; it only precludes prisoners with a history of abusing the legal system 12 from continuing to abuse it while enjoying IFP status”); see also Franklin v. Murphy, 745 13 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is itself a matter of 14 privilege and not right.”). 15 “Having afforded plaintiff so much guidance and so many opportunities in the past, 16 the court will not continue to utilize scant judicial resources on what is clearly a futile 17 claim.” Harvey v. Nevada, No. 2:19-CV-01123-TLN-CKD-PS, 2020 WL 731631, at *11 18 (E.D. Cal. Feb. 13, 2020), report and recommendation adopted, No. 2:19-CV-01123-TLN- 19 CKD, 2020 WL 1433019 (E.D. Cal. Mar. 24, 2020). 20 III. Conclusion and Orders 21 For the reasons discussed, the Court: 22 1) DISMISSES this civil action in its entirety based on Plaintiff’s failure to pay 23 the civil filing fee required by 28 U.S.C. § 1914(a); 24 2) CERTIFIES that an IFP appeal from this Order would be frivolous and not 25 taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); and 26 / / / 27 / / / 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: August 18, 2020 . tt f Le 5 on. Janis L. Sammartino 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