(PC) Cruz v. Ballesteros ( 2021 )

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. 1:20-cv-00376-NONE-HBK 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS DENYING IN 13 v. FORMA PAUPERIS STATUS; ORDER DIRECTING THE CLERK OF COURT TO 14 BALLESTEROS, et al., MAIL A COPY OF THE COMPLAINT TO PLAINTIFF 15 Defendants. (Doc. Nos. 2, 4, 8) 16 17 18 19 Plaintiff Guillermo Trujillo Cruz is a state prisoner proceeding pro se in this civil rights 20 action pursuant to 42 U.S.C. § 1983. On March 19, 2020, the assigned magistrate judge issued 21 findings and recommendations recommending that plaintiff’s in forma pauperis status be denied 22 because plaintiff had three or more prior dismissals which counted as strikes under 28 U.S.C. § 23 1915(g). (Doc. No. 4.) The findings and recommendations were served on plaintiff and 24 contained notice that objections thereto were to be filed within fourteen days after service. (Id. at 25 2–3.) 26 On April 15, 2020, plaintiff filed objections to the pending findings and recommendations, 27 arguing that he meets the “imminent danger of serious physical injury” exception. (Doc. No. 5 at 28 2.) That same day, plaintiff also filed a request for an extension of thirty-five (35) days so that he 1 may “properly file objections” to the pending findings and recommendations. (Doc. No. 6.) On 2 April 16, 2020, the then-assigned magistrate judge granted plaintiff’s request for an extension to 3 file further objections to the findings and recommendations. (Doc. No. 7.) Nonetheless, plaintiff 4 never filed additional objections. On July 15, 2020, plaintiff filed a motion requesting a copy of 5 his complaint. (Doc. No. 8.) 6 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this court has conducted a 7 de novo review of the case. Having carefully reviewed the entire file, including plaintiff’s 8 objections filed on April 15, 2020, the court concludes that the magistrate judge’s findings and 9 recommendations are supported by the record and proper analysis.1 10 Plaintiff objects to the pending findings and recommendations on the grounds that he 11 meets the imminent danger exception. Specifically, plaintiff appears to argue that defendants 12 falsely accused him of masturbating in his cell. (Doc. No. 5 at 2.) Plaintiff also appears to argue 13 that he was assaulted on August 29, 2018 and June 27, 2019 in retaliation for filing inmate 14 grievances against Kern Valley State Prison staff. (Id.) However, the court cannot conclude that 15 plaintiff is in imminent danger of serious physical injury based on two incidents that occurred in 16 2018 and 2019. See Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003) (“the ‘threat or prison 17 condition [must be] real and proximate.’ Allegations of past harm do not suffice; the harm must 18 be imminent or occurring at the time the complaint is filed.”) (internal citations omitted); 19 Freeman v. Kernan, No. 2:17-cv-2233-TLN-AC, 2019 WL 3080740, at *2 (E.D. Cal. July 15, 20 2019) (recommending plaintiff’s request for an exception under 28 U.S.C. § 1915(g) be denied 21 where injuries occurred approximately four months before plaintiff filed complaint and therefore 22 could not demonstrate imminent danger), adopted by No. 2:17-cv-02233-TLN-AC (E.D. Cal. 23 24 1 The court notes that plaintiff has had three or more actions dismissed as frivolous, as malicious, or for failing to state a claim upon which relief may be granted. The cases include: 1) Trujillo v. 25 Gonzales-Moran, No. 17-15200 (9th Cir.) (dismissing action on July 28, 2017, as frivolous); 2) Trujillo v. Gomez, No. 1:14-cv-01797-DAD-DLB (E.D. Cal.) (dismissing action on August 5, 26 2016 under Rule 12(b)(6) for failure to exhaust administrative remedies); 3) Cruz v. Ruiz, No. 27 1:14-cv-00975-SAB (E.D. Cal.) (dismissing action on January 6, 2016 for failure to state claim); 4) Trujillo v. Sherman, No. 1:14-cv-01401-BAM (E.D. Cal.) (dismissing action on April 24, 2015 28 for failure to state claim). 1 | Sept. 3, 2019) (Doc. No. 11). 2 The court notes that plaintiff filed a request with the court seeking a copy of the complaint 3 | in this action because he asserted that he is unable to access the law library due to COVID-19 4 | restrictions. (Doc. No. 8.) As a courtesy, the court will direct the Clerk of Court to send a copy 5 | of the complaint in this case (Doc. No. 1) to defendant. 6 Accordingly, 7 1. The findings and recommendations issued on March 19, 2020 (Doc. No. 4) are 8 adopted in full; 9 2. Plaintiff's motion for in forma pauperis status (Doc. No. 2) is denied; 10 3. Within thirty (30) days following the date of service of this order, plaintiff shall 11 pay the $402.00 filing fee in full to proceed with this action; 12 4. Plaintiff is forewarned that if he fails to pay the filing fee within the specified time, 13 this action will be dismissed; 14 5. The Clerk of Court is directed to send a copy of the complaint in this case to 15 defendant (Doc. No. 1); and 16 6. This matter is referred back to the assigned magistrate judge for further 17 proceedings consistent with this order. 18 | IT IS SO ORDERED. si □ | Dated: _ January 2, 2021 Yola A Lange 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28