(PC) Cruz v. Savoie ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 GUILLERMO TRUJILLO CRUZ, Case No. 1:19-cv-01024-JDP 11 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY MOTION TO PROCEED IN FORMA 12 v. PAUPERIS AND REQUIRE PAYMENT OF FILING FEE IN FULL WITHIN TWENTY- 13 S. SAVOIE, ONE DAYS 14 Defendant. ECF No. 2 15 OBJECTIONS DUE WITHIN 14 DAYS 16 ORDER TO ASSIGN CASE TO DISTRICT JUDGE 17 18 19 Plaintiff Guillermo Trujillo Cruz is a state prisoner proceeding without counsel in this 20 civil rights action brought under 42 U.S.C. § 1983. On July 26, 2019, plaintiff filed an 21 application to proceed in forma pauperis under 28 U.S.C. § 1915. ECF No. 2. 22 The Prison Litigation Reform Act provides that “[i]n no event shall a prisoner bring a civil 23 action . . . under this section if the prisoner has, on 3 or more occasions, while incarcerated or 24 detained in any facility, brought an action or appeal in a court of the United States that was 25 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief 26 may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 27 U.S.C. § 1915(g). Plaintiff has had three or more actions dismissed as frivolous, as malicious, or 28 1 for failing to state a claim upon which relief maybe granted.1 Plaintiff has been informed in at 2 least one other case that he is subject to § 1915(g).2 3 Plaintiff has not satisfied the imminent danger exception to § 1915(g). See Andrews v. 4 Cervantes, 493 F.3d 1047, 1053-55 (9th Cir. 2007). At the time of filing, plaintiff resided at 5 North Kern State Prison, but his allegations concern events said to have taken place at Kern 6 Valley State Prison. ECF No. 1 at 1-3. Plaintiff does allege that a “False-Fabricated Rule 7 Violation Report Dated April 27, 2016 . . . Continues To Place Plaintiff Under Danger of Serious 8 Physical Injury” for the purposes of § 1915(g). Id. at 3-4. But plaintiff makes no plausible 9 argument as to why a 2016 report at a different prison places him under imminent danger today. 10 Accordingly, plaintiff’s in forma pauperis application should be denied, and he should 11 pay the filing fee in full, since he has accrued three or more strikes and was not under imminent 12 danger of serious physical harm at the time this action was initiated. See 28 U.S.C. § 1915(g). 13 Order 14 The clerk of court is directed to assign this case to a district judge who will review the 15 findings and recommendations. 16 Findings and Recommendations 17 Based on the foregoing, it is hereby recommended that: 18 1. plaintiff’s in forma pauperis application, ECF No. 2, be DENIED; 19 2. plaintiff be required to pay the $400 filing fee in full within twenty-one days of adoption 20 of these findings and recommendations; and 21 3. if plaintiff fails to pay the $400 filing fee in full within twenty-one days of adoption of 22 these findings and recommendations, all pending motions be terminated, and this action 23 be dismissed without prejudice. 24 The undersigned submits the findings and recommendations to a district judge under 28 25 1 The cases include Cruz v. Munoz, No. 1:14-cv-01215-SAB (E.D. Cal.) (dismissed for failure to state a claim on May 17, 2016); Cruz v. Munoz, No. 1:14-cv-00976-DLB (E.D. Cal.) (dismissed 26 for failure to state a claim on May 11, 2016); Cruz v. Ruiz, No. 1:14-cv-00975-SAB (E.D. Cal.) 27 (dismissed for failure to state a claim on January 6, 2016); and (4) Trujillo v. Sherman, No. 1:14- cv01401-BAM (E.D. Cal.) (dismissed for failure to state a claim on April 24, 2015). 28 2 See Cruz v. Stebbins, 1:17-cv-00789-AWI-GSA (E.D. Cal. 2019). 1 | U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District 2 | Court, Eastern District of California. Within fourteen days of the service of the findings and 3 || recommendations, plaintiff may file written objections to the findings and recommendations with 4 | the court and serve a copy on all parties. That document should be captioned “Objections to 5 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings 6 | and recommendations under 28 U.S.C. § 636(b)(1)(C). 7 g IT IS SO ORDERED. ° g : —N prssann — Dated: _ August 2, 2019 10 UNIT#D STATES MAGISTRATE JUDGE 11 12 13 | No. 205 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28