Bonilla v. Court Clerk Supervisor

Filing 5

ORDER: (1) Denying Motion to Proceed In Forma Pauperis (ECF No. 4 ); and (2) Dismissing Civil Action for Failure to Pay Filing Fee. Signed by Judge Cynthia Bashant on 10/14/20. (All non-registered users served via U.S. Mail Service)(jmo)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 STEVEN WAYNE BONILLA J-48500, Case No.: 3:20-cv-01154-BAS-WVG 12 13 14 15 16 17 Plaintiff, v. COURT CLERK SUPERVISOR, ORDER: (1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS (ECF No. 4); AND Defendant. (2) DISMISSING CIVIL ACTION FOR FAILURE TO PAY FILING FEE 18 Plaintiff Steven Wayne Bonilla, proceeding pro se and currently incarcerated at San 19 Quentin State Prison has filed a civil action claiming the “Court Clerk’s Office is acting in 20 collusion with the Judge to willfully deprive me of my constitutional and statutory rights, 21 by practicing law without a license.” (Compl. at 1, ECF No. 1.) 22 On June 30, 2020, the Court dismissed Plaintiff’s Complaint for failure to pay the 23 filing fee required by 28 U.S.C. Section 1914(a) and/or to file a motion to proceed in forma 24 pauperis (“IFP”) pursuant to 28 U.S.C. Section 1915(a), and granted Plaintiff forty-five 25 days leave in which to pay the filing fee or file a complete motion to proceed IFP. (See 26 ECF No. 2, at 1–2.) Although Plaintiff did not pay the filing fee or file a motion to proceed 27 IFP within the time allotted, Plaintiff did file a Motion to Proceed IFP pursuant to 28 U.S.C. 28 Section 1915(a) on October 6, 2020. (See ECF No. 4.) -120cv1154 1 I. Motion to Proceed IFP 2 A. 3 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cnty. 4 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners, like Plaintiff, however, “face 5 an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a 6 filing fee,” in “increments” as provided by 28 U.S.C. Section 1915(a)(3)(b), Williams v. 7 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act (“PLRA”) 8 amended Section 1915 to preclude the privilege to proceed IFP: 9 10 11 12 Standard of Review . . . if [a] prisoner 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 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 13 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 14 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). 15 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” 16 Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter 17 “Cervantes”) (stating that under the PLRA, “[p]risoners who have repeatedly brought 18 unsuccessful suits may entirely be barred from IFP status under the three strikes 19 rule . . . .”). The objective of the PLRA is to further “the congressional goal of reducing 20 frivolous prisoner litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th 21 Cir. 1997). “[S]ection 1915(g)’s cap on prior dismissed claims applies to claims dismissed 22 both before and after the statute’s effective date.” Id. at 1311. 23 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 24 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 25 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 26 styles such dismissal as a denial of the prisoner’s application to file the action without 27 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 28 When courts “review a dismissal to determine whether it counts as a strike, the style of the -220cv1154 1 dismissal or the procedural posture is immaterial. Instead, the central question is whether 2 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 3 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 4 F.3d 607, 615 (4th Cir. 2013)). “When . . . presented with multiple claims within a single 5 action,” however, courts may “assess a PLRA strike only when the case as a whole is 6 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d 1147, 1152 7 (9th Cir. 2019) (citing Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th 8 Cir. 2016)). 9 Once a prisoner has accumulated three strikes, he is prohibited by Section 1915(g) 10 from pursuing any other IFP action in federal court unless he can show he is facing 11 “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 12 F.3d at 1051–52 (noting Section 1915(g)’s exception for IFP complaints which “make[] a 13 plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ at 14 the time of filing.”). 15 B. Discussion 16 As a preliminary matter, the Court has reviewed Plaintiff’s Complaint and finds that 17 it does not contain any “plausible allegations” to suggest that he “faced ‘imminent danger 18 of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 19 U.S.C. § 1915(g)). Instead, Plaintiff alleges that the “Court Clerk’s Office [is] erroneously 20 refusing/failing to file a petition challenging the judge’s ruling without jurisdiction.” 21 (Compl. at 1.) 22 While Defendants typically carry the initial burden to produce evidence 23 demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in 24 some instances, the district court docket may be sufficient to show that a prior dismissal 25 satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id. 26 at 1120. That is true here. 27 28 -320cv1154 1 Based on the dockets of many court proceedings available on PACER, 1 this Court 2 finds that Plaintiff Steven Wayne Bonilla, identified as CDCR #J-48500, while 3 incarcerated, has had dozens of prisoner civil actions or appeals dismissed on the grounds 4 that they were frivolous, malicious, or failed to state a claim upon which relief may be 5 granted. See In re Steven Bonilla, Nos. C 11–6306 CW (PR), C 11–6307 CW (PR), C 12– 6 0026 CW (PR), C 12–0027 CW (PR), C 12–0206 CW (PR), 2012 WL 216401, at *1 (N.D. 7 Cal. Jan. 24, 2012) (noting Plaintiff’s litigation history in the Northern District of 8 California, including the dismissal of 34 pro se civil rights actions between June 1 and 9 October 31, 2011 alone, which were dismissed “because the allegations in [his] complaints 10 d[id] not state a claim for relief under § 1983.”); id. at *3 (“The following five actions are 11 DISMISSED without prejudice and without leave to amend for failure to state a claim upon 12 which relief may be granted: Bonilla v. Superior Court of Alameda County, C 11-6306; 13 Bonilla v. Alameda County District Attorney’s Office, C 11-6307; Bonilla v. California 14 Supreme Court, C 12-0026; Bonilla v. Cullen, C 12-0027; Bonilla v. California Supreme 15 Court, C 12-0206.”); id. at *3 n.1 (“The Court recently informed Plaintiff that, in 16 accordance with 28 U.S.C. § 1915(g), he no longer qualifies to proceed in forma pauperis 17 in any civil rights action.” (citing In re Steven Bonilla, Nos. C 11-3180, et seq. CW (PR), 18 Order of Dismissal at 6:23-7:19)). 19 Accordingly, because Plaintiff has, while incarcerated, accumulated far more than 20 the three “strikes” permitted by Section 1915(g), and he fails to make any plausible 21 allegation that he faced imminent danger of serious physical injury at the time he filed this 22 case, he is not entitled to the privilege of proceeding IFP. See Cervantes, 493 F.3d at 1055; 23 Rodriguez, 169 F.3d at 1180 (noting that 28 U.S.C. Section 1915(g) “does not prevent all 24 1 25 26 27 28 A court may take judicial notice of its own records, see Gerritsen v. Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015); 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, 1523 (9th Cir. 1986)). It also “‘may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting 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. 1992). -420cv1154 1 prisoners from accessing the courts; it only precludes prisoners with a history of abusing 2 the legal system from continuing to abuse it while enjoying IFP status”); see also Franklin 3 v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is 4 itself a matter of privilege and not right.”). 5 II. Conclusion and Orders 6 For the reasons set forth above, the Court DENIES Plaintiff’s Motion to Proceed 7 IFP (ECF No. 4) as barred by 28 U.S.C. Section 1915(g), DISMISSES this civil action 8 based on Plaintiff’s failure to pay the civil filing fee required by 28 U.S.C. Section 1914(a), 9 CERTIFIES that an IFP appeal from this Order would not be taken in good faith pursuant 10 11 to 28 U.S.C. Section 1915(a)(3), and DIRECTS the Clerk of the Court to close the file. IT IS SO ORDERED. 12 13 DATED: October 14, 2020 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -520cv1154

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