1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEVEN WAYNE BONILLA, Case No.: 3:20-cv-00769-LAB-MDD CDCR #J-48500, 12 ORDER: Plaintiff, 13 vs. 1) DENYING MOTION TO 14 PROCEED IN FORMA PAUPERIS

15 AS BARRED BY

(g) [ECF No. 3] AND 16 ANTHONY J. BATTAGLIA, 17 MICHAEL S. BERG, 2) DISMISSING CIVIL ACTION 18 Defendants. FOR FAILURE TO PAY FILING FEE REQUIRED BY 28 U.S.C. 19 § 1914(a) 20 21 22 On April 22, 2020, Plaintiff Steven Wayne Bonilla, proceeding pro se and 23 currently incarcerated at San Quentin State Prison filed a civil action seeking to compel 24 Defendants to declare his Alameda County Superior Court capital conviction and 25 sentence “null and void.” (See ECF No. 1, Compl., at 2–3.) On April 27, 2020, the Court 26 dismissed Plaintiff’s Complaint for failure to pay the filing fee required by 28 U.S.C. 27 Section 1914(a) and/or to file a motion to proceed in forma pauperis (“IFP”) pursuant to 28

(a), and granted Plaintiff thirty days leave in which to pay the 1 filing fee or file a complete motion to proceed IFP. (See ECF No. 2, at 2–3.) Plaintiff 2 filed a Motion to Proceed IFP pursuant to

(a) on May 18, 2020. 3 (See ECF No. 3.) 4 I. Motion to Proceed IFP 5 A. Standard of Review 6 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cnty. 7 Sheriff’s Office,

(9th Cir. 2011). Prisoners, like Plaintiff, however, 8 “face an additional hurdle.”

In addition to requiring prisoners to “pay the full amount 9 of a filing fee,” in “increments” as provided by

(a)(3)(b), Williams 10 v. Paramo,

(9th Cir. 2015), the Prison Litigation Reform Act 11 (“PLRA”) amended Section 1915 to preclude the privilege to proceed IFP: 12 . . . if [a] prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or 13 appeal in a court of the United States that was dismissed on the 14 grounds that it is frivolous, malicious, or fails to state a claim upon which relief can be granted, unless the prisoner is under 15 imminent danger of serious physical injury. 16 17

(g). “This subdivision is commonly known as the ‘three strikes’ 18 provision.” Andrews v. King,

, 1116 n.1 (9th Cir. 2005). 19 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” 20 Id.; see also Andrews v. Cervantes,

(9th Cir. 2007) (hereafter 21 “Cervantes”) (stating that under the PLRA, “[p]risoners who have repeatedly brought 22 unsuccessful suits may entirely be barred from IFP status under the three strikes 23 rule . . . .”). The objective of the PLRA is to further “the congressional goal of reducing 24 frivolous prisoner litigation in federal court.” Tierney v. Kupers,

, 1312 25 (9th Cir. 1997). “[S]ection 1915(g)’s cap on prior dismissed claims applies to claims 26 dismissed both before and after the statute’s effective date.”

. 27 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, 28 which were dismissed on the ground that they were frivolous, malicious, or failed to state 1 a claim,” Andrews,

n.1 (internal quotations omitted), “even if the 2 district court styles such dismissal as a denial of the prisoner’s application to file the 3 action without prepayment of the full filing fee.” O’Neal v. Price,

, 1153 4 (9th Cir. 2008). When courts “review a dismissal to determine whether it counts as a 5 strike, the style of the dismissal or the procedural posture is immaterial. Instead, the 6 central question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or 7 failure to state a claim.’” El-Shaddai v. Zamora,

(9th Cir. 2016) 8 (quoting Blakely v. Wards,

(4th Cir. 2013)). “When . . . presented with 9 multiple claims within a single action,” however, courts may “assess a PLRA strike only 10 when the case as a whole is dismissed for a qualifying reason under the Act.” Hoffman v. 11 Pulido,

(9th Cir. 2019) (citing Washington v. L.A. Cnty. Sheriff’s 12 Dep’t,

(9th Cir. 2016)). 13 Once a prisoner has accumulated three strikes, he is prohibited by Section 1915(g) 14 from pursuing any other IFP action in federal court unless he can show he is facing 15 “imminent danger of serious physical injury.” See

(g); Cervantes, 493 16 F.3d at 1051–52 (noting Section 1915(g)’s exception for IFP complaints which “make[] a 17 plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ 18 at the time of filing.”). 19 B. Discussion 20 As a preliminary matter, the Court has reviewed Plaintiff’s Complaint and finds 21 that it does not contain any “plausible allegations” to suggest that he “faced ‘imminent 22 danger of serious physical injury’ at the time of filing.” Cervantes,

23 (quoting

(g)). Instead, Plaintiff alleges that a federal grand jury 24 subpoena in his criminal case was improper and as such, Defendants should declare his 25 judgment of conviction “null and void.” (See Compl. at 2.) 26 While Defendants typically carry the initial burden to produce evidence 27 demonstrating a prisoner is not entitled to proceed IFP, Andrews,

, “in 28 some instances, the district court docket may be sufficient to show that a prior dismissal 1 satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id. 2 at 1120. That is true here. 3 Based on the dockets of many court proceedings available on PACER,1 this Court 4 finds that Plaintiff Steven Wayne Bonilla, identified as CDCR #J-48500, while 5 incarcerated, has had dozens of prisoner civil actions or appeals dismissed on the grounds 6 that they were frivolous, malicious, or failed to state a claim upon which relief may be 7 granted. See In re Steven Bonilla,

, at *1 (N.D. Cal. Jan. 24, 2012) 8 (noting Plaintiff’s litigation history in the Northern District of California, including the 9 dismissal of 34 pro se civil rights actions between June 1 and October 31, 2011 alone, 10 which were dismissed “because the allegations in [his] complaints d[id] not state a claim 11 for relief under § 1983.”); id. at *3 (“The following five actions are DISMISSED without 12 prejudice and without leave to amend for failure to state a claim upon which relief may 13 be granted: Bonilla v. Superior Court of Alameda County, C 11-6306; Bonilla v. Alameda 14 County District Attorney’s Office, C 11-6307; Bonilla v. California Supreme Court, C 12- 15 0026; Bonilla v. Cullen, C 12-0027; Bonilla v. California Supreme Court, C 12-0206.”); 16 id. at *3 n.1 (“The Court recently informed Plaintiff that, in accordance with 28 U.S.C. 17 § 1915(g), he no longer qualifies to proceed in forma pauperis in any civil rights action.” 18 (citing In re Steven Bonilla, Nos. C 11-3180, et seq. CW (PR), Order of Dismissal at 19 6:23-7:19)). 20 Accordingly, because Plaintiff has, while incarcerated, accumulated far more than 21

22 23 1 A court may take judicial notice of its own records, see Molus v. Swan, No. 3:05-cv- 00452-MMA-WMc,

, at *2 (S.D. Cal. Jan. 22, 2009) (citing United 24 States v. Author Servs.,

(9th Cir. 1986)); Gerritsen v. Warner Bros. 25 Entm’t Inc.,

(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.,

, 803 n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc.,

(9th Cir. 28 1 || the three “strikes” permitted by Section 1915(g), and he fails to make any plausible 2 || allegation that he faced imminent danger of serious physical injury at the time he filed 3 || this case, he is not entitled to the privilege of proceeding IFP. See Cervantes,

1055; Rodriguez, 169 F.3d at 1180 (noting that

(g) “does not 5 || prevent all prisoners from accessing the courts; it only precludes prisoners with a history 6 || of abusing the legal system from continuing to abuse it while enjoying IFP status”’); see 7 Franklin vy. Murphy,

(9th Cir. 1984) (“[C]ourt permission to 8 || proceed IFP is itself a matter of privilege and not right.”’). 9 Conclusion and Orders 10 For the reasons set forth above, the Court DENIES Plaintiff’s Motion to Proceed 11 || IFP (ECF No. 3) as barred by

(g), DISMISSES this civil action 12 || based on Plaintiff’s failure to pay the civil filing fee required by

(a), 13 || CERTIEFIES that an IFP appeal from this Order would not be taken in good faith pursuant 14 to

(a)(3), and DIRECTS the Clerk of the Court to close the file. 15 IT IS SO ORDERED. 16 17 || Dated: May 20, 2020 / ie 4. ‘Z, Wy 18 Hon. Larry Alan Burns 19 Chief United States District Judge 20 21 22 23 24 25 26 27 28 5