Bolin v. Dwyer

Background

Paul C. Bolin filed this prisoner lawsuit without a lawyer under 42 U.S.C. § 1983, a federal law that permits claims for violations of federal rights by state or local officials acting under state authority. The opinion describes his claims as alleging wrongdoing by the clerk and a deputy clerk of the Ninth Circuit in connection with his unsuccessful appeal from the denial of his federal petition challenging his 1991 Kern County conviction and death sentence.

On February 9, 2023, the court denied Bolin’s application to proceed without paying the filing fee. The court applied 28 U.S.C. § 1915(g), which generally prevents a prisoner with three or more prior federal prisoner cases dismissed as frivolous, malicious, or legally insufficient from proceeding without paying the fee. The exception applies when the prisoner was facing an imminent danger of serious physical injury when the complaint was filed. The court gave Bolin 28 days either to show that the exception applied or to pay the $402 filing fee.

Bolin’s Arguments

Bolin filed another application to proceed without paying the fee and responded to the court’s order. He argued that defendants’ refusal to file or allow a hearing on his requests for substitute counsel had placed him in “grave danger of loss of life by wrongful execution.” He also argued that § 1915(g) was unconstitutional.

Court’s Analysis

The court held that Bolin did not qualify for the imminent-danger exception. It explained that the alleged danger must be connected to unlawful conduct asserted in the complaint and must be capable of being remedied by the court. The court relied on the Ninth Circuit record, which showed that the appeals panel had repeatedly considered and rejected Bolin’s requests for different counsel. The Ninth Circuit had also directed that, because Bolin was represented by counsel, only counsel could submit filings.

The court therefore concluded that any refusal to file additional requests followed a court order rather than unlawful conduct by the defendants. It also concluded that the Ninth Circuit’s rejection of Bolin’s federal appeal could not be remedied by this district court. The court rejected Bolin’s constitutional challenge to § 1915(g), citing Ninth Circuit precedent holding that the statute does not violate due process, equal protection, the Ex Post Facto Clause, or separation of powers.

Disposition

Because Bolin had three or more qualifying prior dismissals and did not meet the imminent-danger exception, the court held that § 1915(g) barred him from proceeding without paying the filing fee. The court DENIED his renewed application to proceed without paying the fee and DISMISSED the action without prejudice to bringing it in a new paid complaint. Judge Charles R. Breyer instructed the clerk to close the file and terminate the motion listed as ECF No. 8.