(PC) Cruz v. Ballesteros ( 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-00124-AWI-BAM (PC) 12 Plaintiff, ORDER DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS ON 13 v. APPEAL 14 BALLESTEROS, (ECF No. 28) 15 Defendant. 16 17 Plaintiff Guillermo Trujillo Cruz (“Plaintiff”) is a state prisoner who proceeded pro se in 18 this civil rights action pursuant to 42 U.S.C. § 1983. 19 On February 18, 2020, the assigned Magistrate Judge issued findings and 20 recommendations recommending that Plaintiff’s application to proceed in forma pauperis be 21 denied on the basis that Plaintiff is subject to 28 U.S.C. § 1915(g) and that his allegations do not 22 satisfy the imminent danger exception. (ECF No. 11.) Those findings and recommendations 23 were adopted in full on September 9, 2020, and the undersigned ordered Plaintiff to pay the 24 $400.00 filing fee in full to proceed with this action. (ECF No. 20.) Following Plaintiff’s failure 25 to pay the filing fee within the specified time, on October 9, 2020, this action was dismissed, 26 without prejudice, for Plaintiff’s failure to comply with the Court’s order and his failure to pay 27 the filing fee. (ECF No. 26.) Judgment was entered accordingly the same date. (ECF No. 31.) 28 /// en enn ne ee een nn nn nn nn nn nnn OE I IEE ED 1 On October 26, 2020, Plaintiff filed a notice of appeal together with a motion to proceed 2 | in forma pauperis on appeal. (ECF Nos. 27, 28.) Pursuant to Federal Rule of Appellate 3 | Procedure 24(a)(2), Plaintiff's motion to proceed in forma pauperis on appeal is denied for the 4 | reasons discussed below. 5 As the Court has previously found, Plaintiff is subject to 28 U.S.C. § 1915(g), which 6 | provides that “[i]n no event shall a prisoner bring a civil action . . . under this section if the 7 | prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought 8 | an action or appeal in a court of the United States that was dismissed on the grounds that it is 9 | frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner 10 | is under imminent danger of serious physical injury.”! 11 The Court did not find that the allegations in Plaintiff's complaint satisfied the imminent 12 | danger exception to 1915(g), (ECF Nos. 11, 20), and Plaintiff has included no allegations in his 13 || notice of appeal indicating that he was in imminent danger at the time the notice of appeal was 14 | filed. See Williams v. Paramo, 775 F.3d 1182, 1189 (9th Cir. 2015) (a three-strikes prisoner may 15 || be required to demonstrate an imminent danger at the time the notice of appeal is filed in order to 16 | proceed in forma pauperis on appeal). 17 Accordingly, Plaintiff's motion to proceed in forma pauperis on appeal, (ECF No. 28), is 18 | HEREBY DENIED. 19 IT IS SO ORDERED. 20 fp) 21 | Dated: _October 30, 2020 _ : _-SENIOR DISTRICT JUDGE 22 23 24 25 1 The Court takes judicial notice of the following United States District Court cases: (1) Trujillo v. Sherman, Case No. 1:14-cv-01401-BAM (E.D. Cal.) (dismissed on April 24, 2015 for failure to state a claim), aff'd, Case No. 26 15-15952 (9th Cir. May 6, 2016); (2) Trujillo v. Ruiz, Case No. 1:14-cv-00975-SAB (E.D. Cal.) (dismissed on January 6, 2016 for failure to state a claim), aff'd, Case No. 16-15101 (9th Cir. December 15, 2017); and (3) Cruz v. Gomez, Case No. 1:15-cv-00859-EPG (E.D. Cal.) (dismissed on February 3, 2017 for failure to state a claim), aff'd, 27 Case No. 17-15358 (9th Cir. October 25, 2017). The Court also takes judicial notice of the following United States Court of Appeals case: Trujillo v. 28 Gonzalez-Moran, Case No. 17-15200 (9th Cir.) (dismissed on August 21, 2017 as frivolous).