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-00029-MMA-AGS CDCR #J-48500, 11 ORDER DENYING MOTION TO Plaintiff, 12 PROCEED IN FORMA PAUPERIS vs. AS BARRED BY 28 U.S.C. § 1915(g); 13
14 [Doc. No. 2] UNKNOWN,
15 Defendant. DISMISSING CIVIL ACTION FOR 16 FAILURE TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 1914(a) 17 18 19 Plaintiff Steven Wayne Bonilla, proceeding pro se, and currently incarcerated at San 20 Quentin State Prison, has filed a civil action entitled “Notification pursuant to 18 U.S.C. 21 § 04,” in which he asks that this Court void his conviction in Alameda County Superior 22 Court Case No. H-12210-A.1 See Compl., Doc. No. 1. 23
24 25 1 18 U.S.C. § 4 provides that “[w]hoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible 26 make known the same to some judge or other person in civil or military authority under the 27 United States, shall be fined under this title or imprisoned not more than three years, or both.” But Plaintiff clearly may not employ a civil action as the means of bringing federal 28 1 Bonilla did not prepay the filing fee required to commence a civil action; instead, he 2 has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). 3 See Doc. No. 2. 4 I. Motion to Proceed IFP 5 A. Standard of Review 6 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 7 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Haywood, however, 8 “face an additional hurdle.” Id. 9 In addition to requiring prisoners to “pay the full amount of a filing fee,” in 10 “monthly installments” or “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), the 11 Prison Litigation Reform Act (“PLRA”) amended section 1915 to preclude the privilege 12 to proceed IFP in cases where the prisoner: 13 . . . 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 States that was 14 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 15 upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 16 17 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 18 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Pursuant to 19 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also 20 Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) 21 (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may 22 entirely be barred from IFP status under the three strikes rule[.]”). The objective of the 23
24 25 (“‘[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.’”) quoting United States v. Nixon, 418 U.S. 683, 693 (1974)); 26 Allen v. Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006) (affirming dismissal of 27 claims brought under 18 U.S.C. §§ 241 and 242 “because these are criminal statutes that do not give rise to civil liability.”) (citing Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th 28 1 PLRA is to further “the congressional goal of reducing frivolous prisoner litigation in 2 federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 3 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, 4 which were dismissed on the ground that they were frivolous, malicious, or failed to state 5 a claim,” Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the 6 district court styles such dismissal as a denial of the prisoner’s application to file the 7 action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 8 (9th Cir. 2008). When courts “review a dismissal to determine whether it counts as a 9 strike, the style of the dismissal or the procedural posture is immaterial. Instead, the 10 central question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or 11 failure to state a claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) 12 (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). 13 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 14 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 15 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 16 1051-52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible 17 allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time 18 of filing.”). 19 B. Discussion 20 As a required preliminary matter, the Court has reviewed Bonilla’s pleading, and 21 finds it does not contain any “plausible allegations” to suggest he “faced ‘imminent 22 danger of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 23 (quoting 28 U.S.C. § 1915(g)). Instead, Bonilla claims he is being falsely imprisoned and 24 seeks to void his Alameda County Superior Court judgment based fraud and claims that 25 “all of the evidence [wa]s founded on a subpoena that was never admitted on the court 26 docket as an exhibit.” See Compl. at 1. Claims of false imprisonment are “not the sort of 27 serious physical injury contemplated by the in forma pauperis statute.” Langston v. 28 White, No. 2:19-CV-1168 DB P, 2019 WL 3326181, at *2 (E.D. Cal. July 3, 2019), 1 report and recommendation adopted, No. 2:19-CV-1168-KJM-DBP, 2019 WL 3318529 2 (E.D. Cal. July 24, 2019) (citing Smith v. Baldwin, No. 18-cv-1503-NJR, 2018 WL 3 3993629, at *2 (S.D. Ill. Aug. 21, 2018); Berryhill v. Oklahoma, No. CIV-13-1370-W, 4 2014 WL 679111, at *2 (W.D. Okla. Jan. 30, 2014).
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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-00029-MMA-AGS CDCR #J-48500, 11 ORDER DENYING MOTION TO Plaintiff, 12 PROCEED IN FORMA PAUPERIS vs. AS BARRED BY 28 U.S.C. § 1915(g); 13
14 [Doc. No. 2] UNKNOWN,
15 Defendant. DISMISSING CIVIL ACTION FOR 16 FAILURE TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 1914(a) 17 18 19 Plaintiff Steven Wayne Bonilla, proceeding pro se, and currently incarcerated at San 20 Quentin State Prison, has filed a civil action entitled “Notification pursuant to 18 U.S.C. 21 § 04,” in which he asks that this Court void his conviction in Alameda County Superior 22 Court Case No. H-12210-A.1 See Compl., Doc. No. 1. 23
24 25 1 18 U.S.C. § 4 provides that “[w]hoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible 26 make known the same to some judge or other person in civil or military authority under the 27 United States, shall be fined under this title or imprisoned not more than three years, or both.” But Plaintiff clearly may not employ a civil action as the means of bringing federal 28 1 Bonilla did not prepay the filing fee required to commence a civil action; instead, he 2 has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). 3 See Doc. No. 2. 4 I. Motion to Proceed IFP 5 A. Standard of Review 6 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 7 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Haywood, however, 8 “face an additional hurdle.” Id. 9 In addition to requiring prisoners to “pay the full amount of a filing fee,” in 10 “monthly installments” or “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), the 11 Prison Litigation Reform Act (“PLRA”) amended section 1915 to preclude the privilege 12 to proceed IFP in cases where the prisoner: 13 . . . 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 States that was 14 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 15 upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 16 17 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 18 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Pursuant to 19 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also 20 Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) 21 (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may 22 entirely be barred from IFP status under the three strikes rule[.]”). The objective of the 23
24 25 (“‘[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.’”) quoting United States v. Nixon, 418 U.S. 683, 693 (1974)); 26 Allen v. Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006) (affirming dismissal of 27 claims brought under 18 U.S.C. §§ 241 and 242 “because these are criminal statutes that do not give rise to civil liability.”) (citing Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th 28 1 PLRA is to further “the congressional goal of reducing frivolous prisoner litigation in 2 federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 3 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, 4 which were dismissed on the ground that they were frivolous, malicious, or failed to state 5 a claim,” Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the 6 district court styles such dismissal as a denial of the prisoner’s application to file the 7 action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 8 (9th Cir. 2008). When courts “review a dismissal to determine whether it counts as a 9 strike, the style of the dismissal or the procedural posture is immaterial. Instead, the 10 central question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or 11 failure to state a claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) 12 (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). 13 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 14 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 15 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 16 1051-52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible 17 allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time 18 of filing.”). 19 B. Discussion 20 As a required preliminary matter, the Court has reviewed Bonilla’s pleading, and 21 finds it does not contain any “plausible allegations” to suggest he “faced ‘imminent 22 danger of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 23 (quoting 28 U.S.C. § 1915(g)). Instead, Bonilla claims he is being falsely imprisoned and 24 seeks to void his Alameda County Superior Court judgment based fraud and claims that 25 “all of the evidence [wa]s founded on a subpoena that was never admitted on the court 26 docket as an exhibit.” See Compl. at 1. Claims of false imprisonment are “not the sort of 27 serious physical injury contemplated by the in forma pauperis statute.” Langston v. 28 White, No. 2:19-CV-1168 DB P, 2019 WL 3326181, at *2 (E.D. Cal. July 3, 2019), 1 report and recommendation adopted, No. 2:19-CV-1168-KJM-DBP, 2019 WL 3318529 2 (E.D. Cal. July 24, 2019) (citing Smith v. Baldwin, No. 18-cv-1503-NJR, 2018 WL 3 3993629, at *2 (S.D. Ill. Aug. 21, 2018); Berryhill v. Oklahoma, No. CIV-13-1370-W, 4 2014 WL 679111, at *2 (W.D. Okla. Jan. 30, 2014). 5 And 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,2 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) 15 (noting Plaintiff’s litigation history in the Northern District of California, including the 16 dismissal of 34 pro se civil rights actions between June 1 and October 31, 2011 alone, 17 which were dismissed “because the allegations in [his] complaints d[id] not state a claim 18 for relief under § 1983.”); id. at *3 (“The following five actions are DISMISSED without 19 prejudice and without leave to amend for failure to state a claim upon which relief may 20 be granted: Bonilla v. Superior Court of Alameda County, C 11-6306; Bonilla v. Alameda 21
22 23 2 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case No. 3:05-cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United 24 States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros. 25 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 system, if those 26 proceedings have a direct relation to matters at issue.’” Bias, 508 F.3d at 1225 (quoting 27 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 || County District Attorney’s Office, C 11-6307; Bonilla v. California Supreme Court, C 12- 2 ||0026; Bonilla v. Cullen, C 1200027; Bonilla v. California Supreme Court, C 12-0206.”); 3 at *3 n.1 (‘The Court recently informed Plaintiff that, in accordance with 28 U.S.C. 4 1915(g), he no longer qualifies to proceed in forma pauperis in any civil rights action.” 5 || (citing In re Steven Bonilla, Nos. C 11-3180, et seq. CW (PR), Order of Dismissal at 6 ||6:23-7:19.)). 7 Accordingly, because Bonilla has, while incarcerated, accumulated far more than 8 three “strikes” permitted by § 1915(g), and he fails to make any plausible allegation that 9 ||he faced imminent danger of serious physical injury at the time he filed this case, he is 10 || not entitled to the privilege of proceeding IFP. See Cervantes, 493 F.3d at 1055; 11 || Rodriguez, 169 F.3d at 1180 (noting that 28 U.S.C. § 1915(g) “does not prevent all 12 || prisoners from accessing the courts; it only precludes prisoners with a history of abusing 13 || the legal system from continuing to abuse it while enjoying IFP status”); see also 14 || Franklin v. Murphy, 745 F.2d 1221, 1231 (th Cir. 1984) (“[C]ourt permission to proceed 15 || IFP is itself a matter of privilege and not right.”’). 16 |/II. Conclusion and Orders 17 For the reasons set forth above, the Court DENIES Plaintiff's Motion to Proceed 18 || IFP (Doc. No. 2) as barred by 28 U.S.C. § 1915(g), DISMISSES this civil action based 19 Plaintiff’s failure to pay the civil filing fee required by 28 U.S.C. § 1914(a), 20 || CERTIFIES that an IFP appeal from this Order would be frivolous pursuant to 28 21 U.S.C. § 1915(a)(3), and DIRECTS the Clerk of the Court to close the case. 22 IT IS SO ORDERED. 23 || DATE: March 4, 2020 Lb □□□ hill HON. MICHAEL M. ANELLO United States District Judge 25 26 27 28 5