Bonilla v. Unknown

          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)

          Hon. Larry Alan Burns Chief United States District Judge.

         Plaintiff 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.

         Bonilla's 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.^[1]

         Bonilla 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.^[2]

         I. Motion to Proceed IFP

         A. Standard of Review

         “All 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 physical injury.

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. 2005).

         “Pursuant 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.

         “Strikes 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)).

         Once a 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.”).

         B. Discussion

         As a 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 ...