Bonilla v. Don Clay

Opinion

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-00201-LAB-AGS CDCR #J-48500, 12 ORDER: Plaintiff, 13 vs. 1) DENYING MOTION TO 14 PROCEED IN FORMA PAUPERIS

15 AS BARRED BY 28 U.S.C. § 1915(g) CLARENCE DON CLAY; JEFFREY W. [ECF No. 3] 16 HORNER; KELLY S. SIMMONS;

YVONNE GONZALEZ-ROGERS; 17 AND JEFFREY S. WHITE; VINCE G.

18 CHHABRIA; RICHARD SEEBORG; 2) DISMISSING CIVIL ACTION DOLLY M. GEE; JEAN P. 19 FOR FAILURE TO PAY FILING ROSENBERG; EDMOND F. FEE REQUIRED BY 28 U.S.C. § 20 BRENNAN; ANTHONY J. 1914(a) BATTAGLIA; HOWARD R. LLOYD; 21 BETH LABSON FREEMAN; TANI

22 GORRE CANTIL-SAKAUYE,

23 Defendants. 24 25 Plaintiff Steven Wayne Bonilla, proceeding pro se and currently incarcerated at San 26 Quentin State Prison has filed a civil action seeking a default judgment against a number 27 of state and federal judges pursuant to Federal Rule of Civil Procedure 55 compelling 28 Defendants to declare his Alameda County Superior Court capital conviction and sentence 1 void for lack of subject-matter jurisdiction. (See ECF No. 1, Compl., at 2-4.) On February 2 24, 2020, the Court dismissed Plaintiff’s Complaint for failure to pay the filing fee required 3 by 28 U.S.C. Section 1914(a) and/or to file a motion to proceed in forma pauperis (“IFP”) 4 pursuant to 28 U.S.C. Section 1915(a), and granted Plaintiff thirty days leave in which to 5 pay the filing fee or file a complete motion to proceed IFP. (See ECF No. 2, at 2-3.) 6 Although Plaintiff did not pay the filing fee or file a motion to proceed IFP within the time 7 allotted, Plaintiff did file a Motion to Proceed IFP pursuant to 28 U.S.C. Section 1915(a) 8 on April 23, 2020. (See ECF No. 3.) 9 I. Motion to Proceed IFP 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. Section 1915(a)(3)(b), Williams 15 v. 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 “Cervantes”) (stating that under the PLRA, “[p]risoners who have repeatedly brought 27 unsuccessful suits may entirely be barred from IFP status under the three strikes 28 rule . . . .”). The objective of the PLRA is to further “the congressional goal of reducing 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, which 5 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 6 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 7 styles such dismissal as a denial of the prisoner’s application to file the action without 8 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 9 When courts “review a dismissal to determine whether it counts as a strike, the style of the 10 dismissal or the procedural posture is immaterial. Instead, the central question is whether 11 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 12 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 13 F.3d 607, 615 (4th Cir. 2013)). “When . . . presented with multiple claims within a single 14 action,” however, courts may “assess a PLRA strike only when the case as a whole is 15 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d 1147, 1152 16 (9th Cir. 2019) (citing Washington v. L.A. Cnty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th 17 Cir. 2016)). 18 Once a prisoner has accumulated three strikes, he is prohibited by Section 1915(g) 19 from pursuing any other IFP action in federal court unless he can show he is facing 20 “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 21 F.3d at 1051-52 (noting Section 1915(g)’s exception for IFP complaints which “make[] a 22 plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ at 23 the time of filing.”). 24 B. Discussion 25 As a preliminary matter, the Court has reviewed Plaintiff’s Complaint and finds that 26 it does not contain any “plausible allegations” to suggest that he “faced ‘imminent danger 27 of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 28 U.S.C. § 1915(g)). Instead, Plaintiff alleges that his judgment of conviction should be 1 declared “null and void” because a federal grand jury subpoena relied upon in his 2 prosecution “never existed and it was never served,” facts which the FBI apparently 3 admitted. (See Compl. at 2 (emphasis omitted).) As a result, Plaintiff argues that 4 Defendants had a duty to declare his judgment of conviction void. (See id.) 5 While Defendants typically carry the initial burden to produce evidence 6 demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in 7 some instances, the district court docket may be sufficient to show that a prior dismissal 8 satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id. 9 at 1120. That is true here. 10 Based on the dockets of many court proceedings available on PACER,1 this Court 11 finds that Plaintiff Steven Wayne Bonilla, identified as CDCR #J-48500, while 12 incarcerated, has had dozens of prisoner civil actions or appeals dismissed on the grounds 13 that they were frivolous, malicious, or failed to state a claim upon which relief may be 14 granted. See In re Steven Bonilla, 2012 WL 216401, at *1 (N.D. Cal. Jan. 24, 2012) (noting 15 Plaintiff’s litigation history in the Northern District of California, including the dismissal 16 of 34 pro se civil rights actions between June 1 and October 31, 2011 alone, which were 17 dismissed “because the allegations in [his] complaints d[id] not state a claim for relief 18 under § 1983.”); id. at *3 (“The following five actions are DISMISSED without prejudice 19 and without leave to amend for failure to state a claim upon which relief may be granted: 20 Bonilla v. Superior Court of Alameda County, C 11-6306; Bonilla v. Alameda County 21 District Attorney’s Office, C 11-6307; Bonilla v. California Supreme Court, C 12-0026; 22 Bonilla v. Cullen, C 12-0027; Bonilla v. California Supreme Court, C 12-0206.”); id. at *3 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 Court recently informed Plaintiff that, in accordance with 28 U.S.C. § 1915(g), 2 no longer qualifies to proceed in forma pauperis in any civil rights action.” (citing In re 3 || Steven Bonilla, Nos. C 11-3180, et seq. CW (PR), Order of Dismissal at 6:23-7:19)). 4 Accordingly, because Plaintiff has, while incarcerated, accumulated far more than 5 ||the three “strikes” permitted by Section 1915(g), and he fails to make any plausible 6 || allegation that he faced imminent danger of serious physical injury at the time he filed this 7 || case, he is not entitled to the privilege of proceeding IFP. See Cervantes, 493 F.3d at 1055; 8 || Rodriguez, 169 F.3d at 1180 (noting that 28 U.S.C. Section 1915(g) “does not prevent all 9 || prisoners from accessing the courts; it only precludes prisoners with a history of abusing 10 || the legal system from continuing to abuse it while enjoying IFP status”); see also Franklin 11 Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is 12 |/itself a matter of privilege and not right.”’). 13 Conclusion and Orders 14 For the reasons set forth above, the Court DENIES Plaintiff’s Motion to Proceed 15 || IFP (ECF No. 3) as barred by 28 U.S.C. Section 1915(g), DISMISSES this civil action 16 || based on Plaintiff’s failure to pay the civil filing fee required by 28 U.S.C. Section 1914(a), 17 || CERTIFIES that an IFP appeal from this Order would not be taken in good faith pursuant 18 || to 28 U.S.C. Section 1915(a)(3), and DIRECTS the Clerk of the Court to close the file. 19 IT IS SO ORDERED. 20 21 ||Dated: May 5, 2020 / vu 4. ‘4, Wy 22 Hon. Lafry Alan Burns 23 Chief United States District Judge 24 25 26 27 28 5 oo