Bonilla v. Davis

Filing 4

ORDER OF DISMISSAL WITH PREJUDICE. Signed by Judge Vince Chhabria on 8/29/2017. The deputy clerk hereby certifies that on 8/29/2017 a copy of this order was served by sending it via first-class mail to the address of each non-CM/ECF user listed on the Notice of Electronic Filing.(knm, COURT STAFF) (Filed on 8/29/2017)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA STEVEN WAYNE BONILLA, Case No. 17-cv-04328-VC (PR) Plaintiff, ORDER OF DISMISSAL WITH PREJUDICE v. RONALD DAVIS, Defendant. Plaintiff Steven Wayne Bonilla is a state prisoner who has filed a pro se petition for a writ of mandamus to compel Warden Ronald Davis to release him from prison. Bonilla has been disqualified from proceeding in forma pauperis under 28 U.S.C. § 1915(g) unless he is “under imminent danger of serious physical injury” at the time he filed his complaint. 28 U.S.C. 1915(g); In re Steven Bonilla, No. C 11-3180 CW (PR); Bonilla v. Dawson, No. C 13-0951 CW (PR). The allegations in this complaint do not show that Bonilla was in imminent danger at the time of filing. Therefore, he may not proceed in forma pauperis. Furthermore, he may not proceed even if he pays the filing fee because this court lacks jurisdiction to issue a writ of mandamus. See 28 U.S.C. § 1361. Section 1361 provides, “[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” This Court cannot order Warden Davis, a state employee, to do anything because he is not an officer, employee or agency of the United States. Furthermore, the relief Plaintiff seeks pertains to his ongoing attempts to invalidate his state criminal conviction. Therefore, such claims, if raised, must be brought by Bonilla’s counsel in his pending federal habeas corpus action, Bonilla v. Ayers, No. C 08-0471 YGR (PR). Accordingly, this action is dismissed with prejudice because amendment would be futile. The Clerk of the Court shall terminate all pending motions and close this case. The Clerk shall return, without filing, any further documents Bonilla submits after this case is closed. IT IS SO ORDERED. Dated: August 29, 2017 ______________________________________ VINCE CHHABRIA United States District Judge 2

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