Steven W. Bonilla v. Stout

Filing 9

ORDER Directing Clerk of Court to Randomly Assign District Judge to Action - CASE ASSIGNED to District Judge Anthony W. Ishii and Magistrate Judge Barbara A. McAuliffe. New Case No. 1:18-cv-00700 AWI BAM (PC); FINDINGS and RECOMMENDATIONS Recommending Dismissal of Action for Failure to Pay Filing Fee 6 , signed by Magistrate Judge Barbara A. McAuliffe on 6/18/2018: 14-Day Deadline. (Hellings, J)

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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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Case No. 1:18-cv-00700-BAM (PC)

Plaintiff,

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v.

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ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN DISTRICT JUDGE TO
ACTION

STOUT,

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FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF ACTION
FOR FAILURE TO PAY FILING FEE

Defendant.

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(ECF No. 6)

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FOURTEEN (14) DAY DEADLINE

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Plaintiff Steven Wayne Bonilla (“Plaintiff”) is a state prisoner proceeding pro se in this

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civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on May 11, 2018 in

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the Sacramento Division of the United States District Court for the Eastern District of California.

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(ECF No. 1.) This action was transferred to the Fresno Division on May 23, 2018. (ECF No. 4.)

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Plaintiff has not paid the filing fee in this action.

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On May 25, 2018 the Court issued an order for Plaintiff to show cause why this case should

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not be dismissed for failure to pay the filing fee, or to pay the filing fee in full to proceed with this

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action. (ECF No. 6.)

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Rather than filing a response to the Court’s order, Plaintiff filed a motion to proceed in forma

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pauperis on May 29, 2018, and a “Motion to Vacate Void Judgment” on June 8, 2018. (ECF Nos. 7,

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8.) Neither filing is responsive to the Court’s order to show cause. The deadline for Plaintiff’s

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response to the Court’s order to show cause, or payment of the filing fee for this action, has expired.
Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that “[i]n no event shall a

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prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior

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occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of

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the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state

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a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious

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physical injury.”1 Plaintiff has been informed in a prior case that he is subject to § 1915(g).2

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The Court reviewed Plaintiff’s complaint and found that his allegations do not satisfy the

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imminent danger exception to section 1915(g). Andrews v. Cervantes, 493 F.3d 1047, 1053−55

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(9th Cir. 2007). Plaintiff, who has been sentenced to death by the Superior Court of California for

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the County of Alameda, argues that the trial court lacked subject matter jurisdiction over that matter,

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and therefore requests that the judgment be vacated and that Plaintiff be released from incarceration.

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(ECF No. 1.) Though Plaintiff alleges that he is “always under imminent danger of serious physical

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injury,” he bases this assertion on the fact that he is under armed guard at all times, with signs posted

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stating “Danger, no warning shots will be fired.” (Id. at 4.) The mere fact of Plaintiff’s confinement

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is not sufficient to satisfy the exception from the three strikes bar under 28 U.S.C. § 1915(g).

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Thus, Plaintiff has not alleged any imminent danger of serious physical injury at the time

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of filing and has not satisfied the exception from the three strikes bar under 28 U.S.C. § 1915(g).

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Plaintiff has failed to pay the $400.00 filing fee required to litigate this action, despite being

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provided with a further opportunity to do so.

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Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a
District Judge to this action.

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The Court takes judicial notice of the following United States District Court Cases: (1) Shepard v. Connolly, Case
No. 2:11-cv-01262-UA-MAN (C.D. Cal.) (dismissed on February 17, 2011, for being frivolous, malicious, or failing
to state a claim); (2) Shepard v. Johnson, Case No. 1:11-cv-01726-SKO PC (dismissed on August 7, 2012, for failure
to state a claim); (3) Shepard v. Munoz, Case No. 1:12-cv-01470-GSA PC (dismissed on October 8, 2013, for failure
to state a claim).
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The Court takes judicial notice of Documents 25 and 26 in Shepard v. Podsakoff, Case No. 1:12-cv-00495-AWIEPG (E.D. Cal.).

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Furthermore, it is HEREBY RECOMMENDED that this action be DISMISSED, without
prejudice, for Plaintiff’s failure to pay the filing fee.

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These Findings and Recommendations 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)(l). Within

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thirty (30) days after being served with these Findings and Recommendations, Plaintiff may file

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written objections with the court. The document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendation.” Plaintiff is advised that the failure to file objections

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within the specified time may result in the waiver of the “right to challenge the magistrate’s

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factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing

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Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

June 18, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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