(PC) Cruz v. Gonzalez ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GUILLERMO TRUJILLO CRUZ, No. 1:17-cv-01548-DAD-JDP (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, REVOKING 14 M. GONZALEZ, PLAINTIFF’S IN FORMA PAUPERIS STATUS, AND REQUIRING PLAINTIFF TO 15 Defendant. PAY THE FILING FEE TO PROCEED WITH THIS ACTION 16 (Doc. No. 39) 17 18 19 Plaintiff Guillermo Trujillo Cruz, a state prisoner, proceeds pro se and in forma pauperis 20 in this civil rights action brought pursuant to 28 U.S.C. § 1983. The matter was referred to a 21 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On July 16, 2019, the assigned magistrate judge issued findings and recommendations 23 recommending that plaintiff’s in forma pauperis be revoked and that plaintiff be required to pay 24 the $400.00 filing fee in full to proceed with this action because (1) he is subject to the three 25 strikes bar under 28 U.S.C. § 1915(g) and (2) the allegations in plaintiff’s complaint to do not 26 satisfy the “imminent danger of serious physical injury” exception to § 1915(g). (Doc. No. 39.) 27 Those findings and recommendations were served on plaintiff and contained notice that any 28 objections thereto were to be filed within fourteen (14) days after service. (Id. at 2.) After 1 requesting and receiving an extension to file his objections, plaintiff filed objections on August 5, 2 2019. (Doc. Nos. 41, 42, 43.) 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has 4 conducted a de novo review of the case. Having carefully reviewed the entire file, including 5 plaintiff’s objections, the undersigned concludes that the findings and recommendations are 6 supported by the record and proper analysis.1 7 ///// 8 Plaintiff’s only objection to the findings and recommendations is that he qualifies for the 9 “imminent danger of serious physical injury” exception to dismissal under § 1915(g). As the 10 pending findings and recommendations note, however, the allegations set forth in plaintiff’s 11 complaint are insufficient to trigger the exception. Plaintiff’s complaint alleges that a 12 correctional officer sexually harassed him and threatened him when he declined her advances, but 13 he does not allege that he is currently at risk of physical harm. Neither the allegations of 14 plaintiff’s complaint nor his objections to the pending findings and recommendations evince an 15 “imminent danger of serious physical injury” at the time the complaint was filed. 28 U.S.C. § 16 1915(g); see Andrews v. Cervantes, 493 F.3d 1047, 1056 (9th Cir. 2007) (defining imminent to 17 refer not “only to events that are already taking place, but to those events ‘ready to take place’ or 18 ‘hanging threateningly over one’s head’”) (citations omitted); see also id. at 1053 (“[T]he 19 availability of the exception turns on the conditions a prisoner faced at the time the complaint was 20 filed, not at some earlier or later time.”); Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002) 21 (noting that § 1915(g) is available for “genuine emergencies” where “time is pressing” and a 22 threat is “real and proximate”). Indeed, in his objections, plaintiff acknowledges that he “knows 23 1 Three dismissal orders relied upon as strikes under § 1915(g) by the magistrate judge in this 24 case were issued by magistrate judges following only the consent of the plaintiff to magistrate judge jurisdiction under 28 U.S.C. § 636(c). Subsequent to those orders, the Ninth Circuit issued 25 its opinion in Williams v. King, 875 F.3d 500, 504–05 (9th Cir. 2017), in which the court held that absent the consent of all parties, including unserved defendants, magistrate judges lack the 26 authority to enter dispositive decisions including orders of dismissal. Nonetheless, the Ninth 27 Circuit has now determined that orders of dismissals issued by magistrate judges without the consent of all parties may later be properly counted as strike dismissal under § 1915(g) even in 28 the wake of the holding in Williams. Hoffman v. Pulido, 928 F.3d 1147, 1150–51 (9th Cir. 2019). 1 | that sexual harassment and verbal threats alone do[] not cause [him to qualify for the imminent 2 | danger exception].” (Doc. No. 43 at 2.) Plaintiff's complaint fails to make “specific fact 3 | allegations of ongoing serious physical injury, or of a pattern of misconduct evidencing the 4 | likelihood of imminent serious physical injury.” Cervantes, 493 F.3d at 1056 (quoting Martin v. 5 | Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003)). The court therefore concludes that plaintiff does 6 | not qualify for the “imminent danger of serious physical injury” exception to dismissal under 7 | § 1915(g) 8 Finally, before the pending findings and recommendations were issued, plaintiff filed a 9 | separate motion to proceed in forma pauperis in this action. (See Doc. No. 38.) Having 10 concluded that plaintiff is subject to the three-strikes bar and that he does not qualify for the 11 | imminent danger exception to that bar, plaintiff's motion to proceed in forma pauperis will be 12 | denied. 13 Accordingly: 14 1. The findings and recommendations (Doc. No. 39) issued on July 16, 2019 are 15 adopted in full; 16 2. Tn accordance with 28 U.S.C. § 1915(g), plaintiff's in forma pauperis status is 17 revoked; 18 3. Within twenty-one (21) days following service of this order, plaintiff shall pay the 19 $400.00 filing fee in full to proceed with this action. If plaintiff fails to pay the 20 filing fee within the specified time, this action will be dismissed; 21 4, Plaintiff's separate motion to proceed in forma pauperis (Doc. No. 38) is denied; 22 and 23 5. The matter is referred back to the assigned magistrate for proceedings consistent 24 with this order. 25 | IT IS SO ORDERED. me □ *° Dated: _ December 4, 2019 AL naan 27 UNITED STATES DISTRICT JUDGE 28