(PC) Cruz v. Pfeifer ( 2020 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 GUILLERMO TRUJILLO CRUZ, Case No. 1:20-cv-01492-EPG (PC) 9 O RDER DIRECTING CLERK OF Plaintiff, COURT TO ASSIGN A DISTRICT 10 JUDGE v. 11 FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF NOT BE ALLOWED 12 C. PFEIFER, et al., TO PROCEED IN FORMA PAUPERIS AND INSTEAD BE REQUIRED TO PAY 13 Defendant. THE FILING FEE 14 (ECF No. 1) 15 THIRTY DAY DEADLINE 16 Plaintiff, Guillermo Trujillo Cruz, is a state prisoner proceeding pro se with this civil 17 rights action pursuant to 42 U.S.C. § 1983. On October 21, 2020, Plaintiff filed the Complaint 18 commencing this action (ECF No. 1). Plaintiff has not paid the filing fee or submitted an 19 application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. For the reasons 20 discussed below, the Court recommends that Plaintiff not be allowed to proceed in forma 21 pauperis and that Plaintiff instead be required to pay the filing fee if he wishes to proceed with 22 this action. 23 The Prison Litigation Reform Act provides that “[i]n no event shall a prisoner bring a 24 civil action . . . under this section if the prisoner has, on 3 or more occasions, while incarcerated 25 or detained in any facility, brought an action or appeal in a court of the United States that was 26 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which 27 relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 1 28 U.S.C. § 1915(g). Plaintiff has had three or more actions dismissed as frivolous, as 2 malicious, or for failing to state a claim upon which relief maybe granted.1 Plaintiff has been 3 informed in other cases that he is subject to § 1915(g).2 4 Plaintiff has not satisfied the imminent danger exception to § 1915(g). See Andrews v. 5 Cervantes, 493 F.3d 1047, 1053-55 (9th Cir. 2007). Plaintiff filed this action on October 21, 6 2020. His allegations concern events that occurred in April, May, and June 2019. (ECF No. 1.) 7 Plaintiff makes no argument for why or how these events, which he alleges occurred 15 months 8 prior to the date he filed this action, place him in imminent danger of serious physical injury. 9 Because Plaintiff has accrued three or more strikes and was not under imminent danger 10 of serious physical harm at the time this action was initiated, he should not be allowed to 11 proceed in forma pauperis and should instead be required to pay the filing fee in full in order to 12 proceed with this action. See 28 U.S.C. § 1915(g). 13 ORDER AND RECOMMENDATION 14 The Court directs the Clerk of Court to assign a district judge to this case. 15 16 Based on the foregoing, it is HEREBY RECOMMENDED that, pursuant to 28 U.S.C. 17 § 1915(g), Plaintiff not be allowed to proceed in forma pauperis and instead be directed to pay 18 the $400.00 filing fee in full if he wants to proceed with this action. 19 These findings and recommendations will be submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days 21 after being served with these findings and recommendations, Plaintiff may file written objections 22 23 1 The Court takes judicial notice of the following 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. 15-15952 (9th Cir. May 24 6, 2016); (2) Trujillo v. Ruiz, 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); (3) Cruz v. Gomez, Case No. 1:15-cv- 25 00859-EPG (E.D. Cal.) (dismissed on February 3, 2017 for failure to state a claim), aff’d, Case No. 17-15358 (9th Cir. October 25, 2017); and (4) Trujillo v. Gonzalez-Moran, Case No. 17-15200 (9th Cir.) (dismissed on August 26 21, 2017 as frivolous). 2 See,e.g., Cruz v. Gonzalez, Case No. 1:17-cv-01548-DAD-JDP (E.D. Cal.) (dismissed on February 19, 27 2020, for failure to obey court order and failure to pay required filing fee), appeal dismissed, Case No. 20-15413 (9th Cir.) (dismissed as so insubstantial as to not warrant further review); Cruz v. Stebbins, Case No. 1:17-cv- 28 00789-AWI-GSA (E.D. Cal.(dismissed on September 6, 2018, for failure to comply with court order requiring plaintiff to pay filing fee) 1 || with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 2 Recommendations.” 3 Plaintiff is advised that failure to file objections within the specified time may result in 4 |] the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing 5 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 7 IS SO ORDERED. Dated: _ October 22, 2020 [see heey — 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28