United States District Court, S.D. California
(1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS UNDER
28 U.S.C. § 1915(G) [ECF NO. 5]; AND (2) DISMISSING
ACTION WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE
REQUIRED BY 28 U.S.C. § 1914(A)
CYNTHIA BASHANT, UNITED STATES DISTRICT JUDGE
Steven Wayne Bonilla, proceeding pro se and
currently incarcerated at San Quentin State Prison, filed a
civil action on October 2, 2019. (ECF No. 1.) Plaintiff 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. 5) and a
separate miscellaneous document entitled “Response to
Court Ruling.” (ECF No. 4.) The Court
DENIES Plaintiff's Motion to Proceed IFP
and DISMISSES the action without prejudice
for failure to pay the filing fee.
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), Williams v. Paramo, 775 F.3d
1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act
(“PLRA”) amended § 1915 to preclude the
ability 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.
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). Such complaints are dismissed for purposes of
§ 1915(g) “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
Plaintiff'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)).
while Defendants typically carry the initial burden to
produce evidence demonstrating a prisoner is not entitled to
proceed IFP, “in some instances, the district court
docket may be sufficient to show that a prior dismissal
satisfies at least one of the criteria under § 1915(g)
and therefore counts as a strike.” Andrews,
398 F.3d at 1119- 1120. That is the case here.
may take judicial notice of its own records. See Molus v.
Swan, 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)). 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 ...