United States District Court, S.D. California
ORDER: 1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS
AS BARRED BY 28 U.S.C. § 1915(G) [ECF NO. 4] AND 2)
DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILURE TO PAY
FILING FEE REQUIRED BY 28 U.S.C. § 1914(A)
Larry Alan Burns Chief United States District Judge.
Steven Wayne Bonilla, proceeding pro se and currently
incarcerated at San Quentin State Prison and allegedly
serving a 32‒year sentence imposed by the Alameda
County Superior Court, has filed a civil action entitled
“In re: Steven Wayne Bonilla Being Declared a Vexatious
Litigant.” See ECF No. 1 at 1‒2, 13.
complaint names no Defendants, but it appears he seeks to
challenge the constitutional validity of both state and
federal statutes under which he has previously been declared
vexatious. Id. at 1, 4‒5. Bonilla
simultaneously attempts to invoke federal jurisdiction
pursuant to a criminal statute, 18 U.S.C. § 04, based on
alleged acts of “fraud committed on the court.”
Id. at 5.
has not prepaid the $400 filing fee required by 28 U.S.C.
§ 1914(a) to commence a civil action; instead, he has
filed a Motion to Proceed In Forma Pauperis
(“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF
No. 4), followed by as a separate miscellaneous document
entitled “Response to Court Ruling.” See
ECF No. 3.
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.”).
required preliminary matter, the Court has reviewed
Bonilla's pleading, 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)). Instead,
as described above, Bonilla seeks to challenge the validity
of 28 U.S.C. § 1915(g) and Cal. Code of Civil Procedure
391, California's vexatious litigant statute, on First
Amendment grounds. See Compl., at 1‒2,
4‒5. However, both statutes have withstood such
constitutional scrutiny. See e.g., Rodriguez v.
Cook, 169 F.3d 1176, 1179, 1181 (9th Cir. 1999)
(concluding that § 1915(g) does not violate due process,
equal protection, the separation of powers or, where a
fundamental interest is not at stake, the right to access the
courts); White v. Colorado, 157 F.3d 1226, 1232-1233
(10th Cir. 1998) (no violation of right to access courts
because § 1915(g) does not prevent a prisoner with three
strikes from filing civil actions, it merely prohibits him
from enjoying IFP status, which is a privilege, not a right);
Rivera v. Allin, 144 F.3d 719, 723-24 (11th Cir.
1998) (no violation of right to access the courts),
abrogated on other grounds by Jones v. Bock, 549
U.S. 199 (2007); Carson v. Johnson, 112 F.3d 818,
821 (5th Cir. 1997) (no violation of due process because
§ 1915(g) only denies IFP status, it ...