(PC) Cruz v. Ostrander ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GUILLERMO TRUJILLO CRUZ, Case No. 1:19-cv-0994-AWI-JLT (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S APPLICATION TO 13 v. PROCEED IN FORMA PAUPERIS 14 LT. J. OSTRAN DER, S. SAVOIE, (Doc. 32) 15 Defendants. FOURTEEN-DAY DEADLINE 16 17 This action proceeds on plaintiff’s first amended complaint on a First Amendment 18 retaliation claim against Correctional Officer (CO) S. Savoie and a Fourteenth Amendment equal 19 protection claim against Lt. J. Ostrander. (Doc. 17.) Defendants have since been served and 20 appeared in this case. Recently, defendants filed a motion to strike the first amended complaint 21 for plaintiff’s failure to pay the filing fee or to submit an application to proceed in forma 22 pauperis. (Doc. 29.) Because it appeared that plaintiff had indeed not paid the filing fee or sought 23 leave to proceed in forma pauperis, he was ordered to do so immediately. (Doc. 30.) Plaintiff was 24 also informed that he is a three-strikes litigant within the meaning of 28 U.S.C. § 1915 and that, if 25 he wished to proceed in forma pauperis, he would need to show that he meets the requirements of 26 Section 1915(g), which provides an exception to the three-strikes bar. Plaintiff has now submitted 27 an application to proceed in forma pauperis. (Doc. 32.) For the reasons set forth below, the court 28 will recommend that it be denied. 1 I. Three Strikes Provision of 28 U.S.C. 1915(g) 2 In forma pauperis proceedings are governed by 28 U.S.C. § 1915. Section 1915(g) 3 provides that “[i]n no event shall a prisoner bring a civil action ... under this section if the 4 prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought 5 an action or appeal in a court of the United States that was dismissed on the grounds that it is 6 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the 7 prisoner is under imminent danger of serious physical injury.” 8 “This subdivision is commonly known as the ‘three strikes’ provision.” Andrews v. King, 9 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) (hereafter “Andrews”). “Pursuant to § 1915(g), a 10 prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews v. Cervantes, 493 11 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the PLRA,1 “[p]risoners who 12 have repeatedly brought unsuccessful suits may entirely be barred from IFP status under the three 13 strikes rule[.]”). The objective of the PLRA is to further “the congressional goal of reducing 14 frivolous prisoner litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 15 1997). 16 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which were 17 dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” Andrews, 18 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court styles such dismissal 19 as a denial of the prisoner’s application to file the action without prepayment of the full filing 20 fee,” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). Once a prisoner has accumulated 21 three strikes, he is prohibited by section 1915(g) from pursuing any other IFP action in federal 22 court unless he can show he is facing “imminent danger of serious physical injury.” See 28 23 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051-52 (noting § 1915(g)’s exception for IFP 24 complaints which “make[ ] a plausible allegation that the prisoner faced ‘imminent danger of 25 serious physical injury’ at the time of filing”). 26 While the PLRA does not require a prisoner to declare that § 1915(g) does not bar his 27 request to proceed IFP, Andrews, 398 F.3d at 1119, “[i]n some instances, the district court docket 28 records may be sufficient to show that a prior dismissal satisfies at least one of the criteria under 1 § 1915(g) and therefore counts as a strike.” Id. at 1120. When applying 28 U.S.C. § 1915(g), 2 however, the court must “conduct a careful evaluation of the order dismissing an action, and 3 other relevant information,” before determining that the action “was dismissed because it was 4 frivolous, malicious or failed to state a claim,” since “not all unsuccessful cases qualify as a strike 5 under § 1915(g).” Id. at 1121. 6 II. Analysis 7 A review of the actions filed by plaintiff reveals that he is subject to 28 U.S.C. § 1915(g) 8 and is precluded from proceeding in forma pauperis unless plaintiff was, at the time the complaint 9 was filed, under imminent danger of serious physical injury. Plaintiff has filed numerous 10 unsuccessful cases in the Eastern District of California under the names “Guillermo Trujillo 11 Cruz,” “Guillermo Cruz Trujillo,” and “Guillermo Trujillo.” Court records reflect that on at least 12 three prior occasions plaintiff has brought actions while incarcerated that were dismissed as either 13 frivolous, malicious, or for failure to state a claim upon which relief may be granted. The court 14 takes judicial notice of the following four cases: 15 (1) Cruz v. Munoz, No. 1:14-cv-01215-SAB (PC) (E.D. Cal.) (dismissed for failure to state 16 a claim on May 17, 2016); 17 (2) Cruz v. Munoz, No. 1:14-cv-00976-DLB (PC) (E.D. Cal.) (dismissed for failure to state 18 a claim on May 11, 2016); 19 (3) Cruz v. Ruiz, No. 1:14-cv-00975-SAB (PC) (E.D. Cal.) (dismissed for failure to state a 20 claim on January 6, 2016); and 21 (4) Trujillo v. Sherman, No. 1:14-cv-01401-BAM (PC) (E.D. Cal.) (dismissed for failure 22 to state a claim on April 24, 2015). 23 The availability of the imminent danger exception turns on the conditions a prisoner faced 24 at the time the complaint was filed, not at some earlier or later time. See Cervantes, 493 F.3d at 25 1053. “[A]ssertions of imminent danger of less obviously injurious practices may be rejected as 26 overly speculative or fanciful.” Id. at 1057 n.11. Imminent danger of serious physical injury must 27 be a real, present threat, not merely speculative or hypothetical. To meet his burden under 28 § 1915(g), an inmate must provide “specific fact allegations of ongoing serious physical injury, or 1 a pattern of misconduct evidencing the likelihood of imminent serious physical injury.” Martin v. 2 Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “Vague and utterly conclusory assertions” of harm 3 are insufficient. White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir. 1998). That is, the 4 “imminent danger” exception is available “for genuine emergencies,” where “time is pressing” 5 and “a threat ... is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). 6 The court has carefully reviewed plaintiff’s complaint and finds it does not contain 7 “plausible allegations” to suggest he “faced ‘imminent danger of serious physical injury’ at the 8 time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). 9 The complaint is premised on conduct occurring in April and May 2016. Therein, plaintiff 10 accuses CO Savoie of retaliating against plaintiff for having filed an inmate grievance against 11 him. CO Savoie is alleged to have issued a falsified Rules Violation Report (RVR) accusing 12 plaintiff of “overfamiliarity” when he allegedly said to CO Savoie, “You sexually arouse me 13 when I see you.” During a hearing on the RVR, Lt. Ostrander conspired with CO Savoie to find 14 plaintiff guilty of the RVR following a hearing. Lt. Ostrander allegedly said, “It’s a white’s 15 world anyways you (Spick).” Plaintiff claims that these defendants were aware that charging him 16 with sexual misconduct or a similar infraction would render him vulnerable to assaults, as 17 eventually happened to him at High Desert State Prison in August 2018. 18 On review, the court concludes that these allegations fail to plausibly meet § 1915(g)’s 19 exception for imminent danger. See Cervantes, 493 F.3d at 1055-56 (plaintiff must allege to face 20 a real, proximate and/or ongoing danger at the time of filing); Prophet v. Clark, No. 1:08-cv- 21 0982-FJM, 2009 WL 1765197, at *1 (E.D. Cal. June 22, 2009) (finding prisoner’s access to the 22 courts, interference with legal mail, and retaliation claims insufficient to satisfy § 1915(g) 23 exception for cases of “imminent danger of serious physical injury”). Plaintiff has not alleged 24 facts showing that he faced a real, present threat of serious physical injury at the time he filed his 25 complaint on July 19, 2019. Plaintiff’s assertions that he was injured by other individuals years 26 later at High Desert State Prison are insufficient to show that any of the named defendants placed 27 plaintiff in imminent danger of serious physical injury. Accordingly, plaintiff’s broad allegations 28 of danger are insufficient to meet the requirements of the imminent danger exception. Therefore, 1 the court finds that plaintiff may not proceed in forma pauperis with this action and must submit 2 the appropriate filing fee in order to proceed with this action. Accordingly, plaintiff’s application 3 to proceed in forma pauperis should be denied, and plaintiff should be required to pay the 4 $405.00 filing fee in full before proceeding with this case. 5 III. Conclusion 6 Based on the foregoing, the Court RECOMMENDS as follows: 7 1. Plaintiff’s application to proceed in forma pauperis be DENIED under 28 U.S.C. 8 § 1915(g); and 9 2. Plaintiff be REQUIRED to submit the $402 filing fee for this case in full within thirty 10 days from the date of service of this order. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 13 (14) days from the date of service of these findings and recommendations, Plaintiff may file 14 written objections with the court. Such a document should be captioned “Objections to 15 Magistrate Judge's Findings and Recommendations.” Plaintiff is advised that failure to file 16 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 17 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 18 (9th Cir. 1991)). 19 IT IS SO ORDERED. 20 21 Dated: March 3, 2021 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28