(PC) Trujillo Cruz v. Smith ( 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. 2:19-cv-1027 JAM CKD P 12 Plaintiff, 13 v. ORDER 14 B. SMITH, et al., 15 Defendants. 16 17 Plaintiff is a California prisoner proceeding pro se with a civil action. This proceeding 18 was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 19 Plaintiff has requested leave to proceed in forma pauperis. Title 28 U.S.C. § 1915(g) 20 reads as follows: 21 In no event shall a prisoner bring a civil action . . . [in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated 22 or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is 23 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 24 physical injury. 25 A review of records from this court reveals that, while plaintiff was incarcerated and 26 before this action was filed, the following actions brought by plaintiff were dismissed for failure 27 to state a claim upon which relief may be granted: Trujillo v. Sherman, No. 1:14-cv-1401 BAM; 28 //// 1 | Trujillo v. Ruiz, No. 1:14-cv-0975 SAB; and Cruz v. Gomez, No. 1:15-cv-0859 EPG.! There is 2 | no allegation by plaintiff that he is under imminent danger of serious physical injury. 3 In light of the foregoing, plaintiffs request for leave to proceed in forma pauperis will be 4 | denied. Plaintiff will be granted fourteen days within which to pay the filing fee for this action. 5 | Failure to pay the filing fee within fourteen days will result in a recommendation that this action 6 | be dismissed. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Plaintiff's request for leave to proceed in forma pauperis (ECF No. 16) is denied. 9 2. Plaintiff is granted fourteen days within which to pay the $400 filing fee for this action. 10 | Failure to pay the filing fee within fourteen days will result in a recommendation that this action 11 | be dismissed. 12 | Dated: September 3, 2019 ff a f/f it / a i, Candfe Kh. ee ee ee 13 CAROLYN K. DELANEY : 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 | 1 cruz1027.3k 18 19 20 21 22 23 24 1 The court notes that all three of these actions were dismissed by magistrate judges where only 26 | Plaintiff consented to the magistrate judge. The Ninth Circuit recently held although there is no longer a “dispute that a magistrate judge lacks the authority to dismiss a case unless all parties 27 || have consented to proceed before the magistrate judge,” a prisoner plaintiff “cannot escape” the 28 U.S.C. § 1915(g) consequences of such a dismissal “through an untimely collateral attack.” 28 | Hoffman v. Pulido, 928 F.3d 1147, 1150-51 (9th Cir. 2019).