(PC) Cruz v. Gomez ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GUILLERMO TRUJILLO CRUZ, Case No. 1:20-cv-00740-JLT (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO 13 v. PROCEED IN FORMA PAUPERIS AND DISMISS ACTION 14 GOMEZ, et al., (Doc. 5) 15 Defendants. 14-DAY DEADLINE 16 Clerk of the Court to Assign a District Judge 17 18 Before the Court is Plaintiff’s application to proceed in forma pauperis pursuant to 28 19 U.S.C. § 1915. (Doc. 5.) Because Plaintiff has more than three “strikes” under section 1915(g) 20 and fails to show that he is in imminent danger of serious physical injury, the Court recommends 21 that his application be denied and this action dismissed. 22 I. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915 23 28 U.S.C. § 1915 governs in forma pauperis proceedings. The statute provides, “[i]n no 24 event shall a prisoner bring a civil action … under this section if the prisoner has, on 3 or more 25 prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a 26 court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails 27 to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 1 II. DISCUSSION 2 The Court takes judicial notice of four of Plaintiff’s prior lawsuits that were dismissed 3 because they were frivolous or failed to state a claim on which relief can be granted:1 (1) Trujillo 4 v. Sherman, No. 1:14-cv-01401-BAM (E.D. Cal.) (dismissed on April 24, 2015, for failure to 5 state a claim); (2) Trujillo v. Ruiz, et al., No. 1:14-cv-00975-SAB (E.D. Cal) (dismissed on 6 January 6, 2016, for failure to state a claim); (3) Trujillo Cruz v. Gomez, et al., No. 1:15-cv- 7 00859-EPG (E.D. Cal) (dismissed on February 3, 2017, for failure to state a claim); and, (4) 8 Trujillo v. Gonzalez-Moran, et al., No. 17-15200 (9th Cir.) (dismissed on July 28, 2017, as 9 frivolous). These cases were dismissed before Plaintiff initiated the current action on May 27, 10 2020. Plaintiff is therefore precluded from proceeding in forma pauperis in this action unless, at 11 the time he filed his complaint, he was under imminent danger of serious physical injury. See 12 Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 2007). 13 Plaintiff’s claims stem from alleged incidents of harassment, retaliation, and excessive 14 force at Kern Valley State Prison approximately six years ago, in October 2014. (See Doc. 1 at 1, 15 5-13.) Plaintiff also raises procedural due process and access to court claims based on these 16 incidents. (See id. at 11, 12-13.) Plaintiff is currently incarcerated at North Kern State Prison. (See 17 id. at 1.) He does not allege that he is in imminent danger of serious physical injury. 18 III. CONCLUSION AND RECOMMENDATIONS 19 Based on the foregoing, the Court RECOMMENDS that: 20 1. Plaintiff’s motion to proceed in forma pauperis (Doc. 5) be DENIED; and, 21 2. This action be DISMISSED without prejudice to refiling upon prepayment of the 22 filing fee. 23 The Court DIRECTS the Clerk of the Court to assign a district judge to this action. 24 These Findings and Recommendations will be submitted to the United States District 25 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 26 of the date of service of these Findings and Recommendations, Plaintiff may file written 27 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 1 Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time 2 may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 3 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 IT IS SO ORDERED. 5 6 Dated: June 7, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27