(PC) Cruz v. White ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GUILLERMO TRUJILLO CRUZ, No. 2:19-CV-1304-KJM-DMC-P 12 Plaintiff, 13 v. ORDER 14 E. WHITE, 15 Defendant. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 18 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by 19 Eastern District of California local rules. 20 On October 4, 2019, the Magistrate Judge filed findings and recommendations, 21 which were served on the parties and which contained notice that the parties may file objections 22 within the time specified therein. Timely objections to the findings and recommendations have 23 been filed. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, 25 this court has conducted a de novo review of this case. Having reviewed the file, the court finds 26 the findings and recommendations to be supported by the record and by the proper analysis, with 27 one exception explained below. 28 ///// 1 The magistrate judge recommends that plaintiff be denied leave to proceed in 2 forma pauperis under the three strikes provision of 28 U.S.C. § 1915(g), and that this action be 3 dismissed without prejudice. The court agrees with the magistrate judge’s findings that the 4 provisions of 28 U.S.C. § 1915(g) apply to plaintiff, that he has not adequately alleged facts to 5 support a finding that he “is under imminent danger of serious physical injury,” 28 U.S.C. § 6 1915(g), and that he therefore cannot proceed with this action in forma pauperis. The court does 7 not agree, however, that this action must be immediately dismissed without opportunity to remit 8 the filing fee. 9 The Ninth Circuit has affirmed a district court’s dismissal of an action “pursuant 10 to” 28 U.S.C. § 1915(g). Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir. 1997). The issue in 11 Tierney was whether the three strikes provision of 28 U.S.C. § 1915(g) “includes claims 12 dismissed prior to the effective date of the statute. . . .” Id. The court did not examine whether 13 the language of § 1915(g) requires dismissal without giving leave to pay the filing fee, and the 14 court does not view Tierney as requiring dismissal under the circumstances of this case. This 15 court is prepared to give the plaintiff an opportunity to pay the filing fee of $400.00 for this 16 action, 28 U.S.C. § 1914, and if he fails to do so, then the court will dismiss the action under 17 Federal Rule of Civil Procedure 41. 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. The findings and recommendations filed October 4, 2019, ECF No. 13, are 20 adopted to the extent consistent with this order; 21 2. Plaintiff’s motion for in forma pauperis status (ECF No. 7) is denied; 22 3. Within thirty days (30) of the date of this order, plaintiff shall pay the 23 $400.00 filing fee required for this action. Failure to pay the filing fee 24 within thirty days will result in dismissal of this action. 25 DATED: March 13, 2020. 26 27 28