Bonilla v. Harrell et al

Filing 3

FINDINGS and RECOMMENDATIONS to Dismiss Action for Failure to Submit an Application to Proceed In Forma Pauperis OR Pay the Filing Fee, and Failure to State a Claim Upon Which Relief May be Granted, signed by Magistrate Judge Michael J. Seng on 3/20/18. Objections to F&R Due Within Fourteen Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEVEN WAYNE BONILLA,

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Plaintiff,

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v.
JUDGE ARLAN HARRELL, et al.,

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Defendants.

CASE NO. 1:18-cv-00173-LJO-MJS
FINDINGS AND RECOMMENDATIONS TO
DISMISS ACTION FOR FAILURE TO
SUBMIT AN APPLICATION TO PROCEED
IN FORMA PAUPERIS OR PAY THE FILING
FEE, AND FAILURE TO STATE A CLAIM
UPON WHICH RELIEF MAY BE GRANTED
FOURTEEN DAY OBJECTION DEADLINE

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Plaintiff is a state prisoner proceeding pro se in what appears to be a civil rights

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action pursuant to 42 U.S.C. § 1983.

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I.

Failure to Pay Filing Fee

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Plaintiff initiated this action on February 2, 2018. (ECF No. 1.) He did not file an

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application to proceed in forma pauperis (“IFP”) or pay the applicable filing fee. On

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February 7, 2018, he was ordered to respond within thirty days by either filing an

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application to proceed IFP or paying the filing fee in full. He did not comply.
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A civil action may not proceed absent the submission of either the filing fee or a

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completed application to proceed in forma pauperis. 28 U.S.C. §§ 1914, 1915. Based on

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Plaintiff’s failure to comply with the Court’s order, dismissal of this action is appropriate.

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See In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226

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(9th Cir. 2006); Local Rule 110.

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II.

Failure to State a Claim

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A.

Screening Requirement

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The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may

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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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B.

Pleading Standard

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Section 1983 “provides a cause of action for the deprivation of any rights,

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privileges, or immunities secured by the Constitution and laws of the United States.”

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Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

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Section 1983 is not itself a source of substantive rights, but merely provides a method for

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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

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(1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated and

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(2) that the alleged violation was committed by a person acting under the color of state

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law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d

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1243, 1245 (9th Cir. 1987).
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A complaint must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief

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that is plausible on its face.” Id. Facial plausibility demands more than the mere

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possibility that a defendant committed misconduct and, while factual allegations are

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accepted as true, legal conclusions are not. Id. at 677-78.
Plaintiff’s Allegations

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C.

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Plaintiff’s allegations are somewhat unclear. However, as best the Court can tell,

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Plaintiff is challenging proceedings leading to his conviction in the Alameda County

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Superior Court. He seeks to void the judgment of conviction and to be released from

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custody. The role of the named defendants – both of whom are judges in Fresno County

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Superior Court – is not apparent.

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D.

Discussion

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Petitioner cannot challenge his conviction in this civil rights action. Nor may

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Plaintiff seek to invalidate the fact or duration of his confinement indirectly through a

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judicial determination that necessarily implies the unlawfulness of the State’s custody. A

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section 1983 action is barred, no matter the relief sought, if success in that action would

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necessarily demonstrate the invalidity of confinement or its duration. Wilkinson v.

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Dotson, 544 U.S. 74, 81-82 (2005).; Heck v. Humphrey, 512 U.S. 477, 489 (1994)

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(unless and until favorable termination of the conviction or sentence, no cause of action

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under section 1983 exists). The exclusive method for challenging the fact or duration of

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Plaintiff’s confinement is by filing a petition for a writ of habeas corpus. Wilkinson v.

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Dotson, 544 U.S. 74, 78, 81 (2005). See 28 U.S.C. § 2254(a). The Court notes that

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Plaintiff presently is pursuing a habeas petition to challenge this conviction. Bonilla v.

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Ayers, No. 4:08-cv-0471 YGR (N.D. Cal.).
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E.

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In light of the foregoing, Plaintiff’s complaint fails to state a claim upon which relief

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Conclusion Regarding Failure to State a Claim

may be granted.

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In general, a pro se Plaintiff is entitled to leave to amend unless “it appears

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beyond doubt that the plaintiff can prove no set of facts in support of his claim which

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would entitle him to relief.” Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984)

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(citation omitted). “Valid reasons for denying leave to amend include undue delay, bad

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faith, prejudice and futility.” Cal. Architectural Bldg. Prod. v. Franciscan Ceramics, 818

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F.2d 1276, 1293 (9th Cir. 1983); Lockman Found. v. Evangelical Alliance Mission, 930

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F.2d 764, 772 (9th Cir. 1991).

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Here, defects in the complaint cannot be cured through amendment. The Court

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concludes leave to amend would be futile and should be denied.

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III.

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Conclusion and Recommendation
Based on the foregoing, it is HEREBY RECOMMENDED that Petitioner’s

complaint be dismissed without leave to amend for:
1. Failure to pay the applicable filing fee or file a motion to proceed in
forma pauperis; and
2. Failure to state a claim upon which relief may be granted.

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The findings and recommendation will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1).

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Within fourteen (14) days after being served with the findings and recommendation, the

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parties may file written objections with the Court. The document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendation.” A party may respond

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to another party’s objections by filing a response within fourteen (14) days after being

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served with a copy of that party’s objections. The parties are advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal.

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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)

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IT IS SO ORDERED.
Dated:

March 20, 2018

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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