United States District Court, S.D. California
ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS
BARRED BY 28 U.S.C. § 1915(G); [DOC. NO. 4] DISMISSING
CIVIL ACTION WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE
REQUIRED BY 28 U.S.C. § 1914(A)
MICHAEL M. ANELLO UNITED STATES DISTRICT JUDGE.
STEVEN WAYNE BONILLA, currently incarcerated at San Quentin
State Prison (“SQ”) located in San Quentin,
California, and proceeding pro se, has filed a civil
action. See Doc. No. 1. Plaintiff did not prepay the
filing fee required to commence a civil action at the time he
filed his Complaint; instead, he has filed a Motion for Leave
to Proceed In Forma Pauperis (“IFP”) pursuant to
28 U.S.C. § 1915(a) (Doc. No. 4).
Motion to Proceed IFP
Standard of Review
persons, not just prisoners, may seek IFP status.”
Moore v. Maricopa County Sheriff's
Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners
like Plaintiff, however, “face … additional
hurdle[s].” Id. Specifically, in addition to
requiring prisoners to “pay the full amount of a filing
fee, ” in “monthly installments” or
“increments” as provided by 28 U.S.C. §
1915(a)(3)(b), Bruce v. Samuels, __ U.S. __, 136
S.Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d
1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act
(“PLRA”) amended section 1915 to preclude the
privilege to proceed IFP:
. . . 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
28 U.S.C. § 1915(g). “This subdivision is commonly
known as the ‘three strikes' provision.”
Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir.
to § 1915(g), a prisoner with three strikes or more
cannot proceed IFP.” Id.; see also Andrews
v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007)
(hereafter “Cervantes”) (under the PLRA,
“[p]risoners who have repeatedly brought unsuccessful
suits may entirely be barred from IFP status under the three
strikes rule[.]”). The objective of the PLRA is to
further “the congressional goal of reducing frivolous
prisoner litigation in federal court.” Tierney v.
Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).
“[S]ection 1915(g)'s cap on prior dismissed claims
applies to claims dismissed both before and after the
statute's effective date.” Id. at 1311.
are prior cases or appeals, brought while the plaintiff was a
prisoner, which were dismissed on the ground that they were
frivolous, malicious, or failed to state a claim, ”
Andrews, 398 F.3d at 1116 n.1 (internal quotations
omitted), “even if the district court styles such
dismissal as a denial of the prisoner's application to
file the action without prepayment of the full filing
fee.” O'Neal v. Price, 531 F.3d 1146, 1153
(9th Cir. 2008). When courts “review a dismissal to
determine whether it counts as a strike, the style of the
dismissal or the procedural posture is immaterial. Instead,
the central question is whether the dismissal ‘rang the
PLRA bells of frivolous, malicious, or failure to state a
claim.'” El-Shaddai v. Zamora, 833 F.3d
1036, 1042 (9th Cir. 2016) (quoting Blakely v.
Wards, 738 F.3d 607, 615 (4th Cir. 2013)).
prisoner has accumulated three strikes, section 1915(g)
prohibits his pursuit of any subsequent IFP civil action or
appeal in federal court unless he faces “imminent
danger of serious physical injury.” See 28
U.S.C. § 1915(g); Cervantes, 493 F.3d at
1051-52 (noting § 1915(g)'s exception for IFP
complaints which “make a plausible allegation that
the prisoner faced ‘imminent danger of serious physical
injury' at the time of filing.”).
initial matter, the Court has reviewed Plaintiff's
Complaint, and finds it does not contain any “plausible
allegations” to suggest he “faced ‘imminent
danger of serious physical injury' at the time of
filing.” Cervantes, 493 F.3d at 1055 (quoting
28 U.S.C. § 1915(g)).
while Defendants typically carry the initial burden to
produce evidence demonstrating a prisoner is not entitled to
proceed IFP, Andrews, 398 F.3d at 1119, “in
some instances, the district court docket may be sufficient
to show that a prior dismissal satisfies at least one on the
criteria under § 1915(g) and therefore counts as a
strike.” Id. at 1120. That is the case here.
may take judicial notice of its own records, see Molus v.
Swan, Civil Case No. 3:05-cv-00452-MMA-WMc, 2009 WL
160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United
States v. Author Services, 804 F.2d 1520, 1523 (9th Cir.
1986)); Gerritsen v. Warner Bros. Entm't Inc.,
112 F.Supp.3d 1011, 1034 (C.D. Cal. 2015), and
“‘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, 508 F.3d at 1225 (quoting
Bennett v. Medtronic, Inc., 285 ...