Trujillo-Cruz v. Tincher ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GUILLERMO TRUJILLO-CRUZ, Case No. 20-cv-02714-HSG 8 Plaintiff, ORDER TO SHOW CAUSE 9 v. Re: Dkt. No. 2 10 S. TINCHER, et al., 11 Defendants. 12 13 Plaintiff, an inmate at Pelican Bay State Prison, filed this pro se civil rights action pursuant 14 to 42 U.S.C. § 1983. He has requested leave to proceed in forma pauperis. Dkt. No. 2. For the 15 reasons set forth below, the Court orders plaintiff to show cause why his request for leave to 16 proceed in forma pauperis should not be denied pursuant to the three strikes provision set forth in 17 28 U.S.C. § 1915. 18 DISCUSSION 19 This action is governed by the Prison Litigation Reform Act of 1996 (“PLRA”) which was 20 enacted, and became effective, on April 26, 1996. The PLRA provides that a prisoner may not 21 bring a civil action under 28 U.S.C. § 1915, i.e., may not proceed in forma pauperis, “if the 22 prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought 23 an action . . . in a court of the United States that was dismissed on the grounds that it is frivolous, 24 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under 25 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 26 Plaintiff is a frequent litigant. Plaintiff has filed at least thirty-nine cases in the Eastern 27 District of California, see, e.g., Trujillo v. Alvarez, C No. 14-cv-00976-LJO-EPG; Guillermo 1 AWI-MJS; Cruz v. Valdez, C No. 18-cv-00571; and Cruz v. Chappuis, C No. 19-cv-01467-WBS- 2 EFB. In the last year alone, he has filed six cases before this Court, including the instant action. 3 See Cruz v. Gutierrez, C No. 19-cv-004726 HSG; Cruz v. Kumbat, C No. 19-cv-05825 HSG; Cruz 4 v. Pierston, C No. 19-cv-08039 HSG; Cruz v. Ford, C No. 19-7649; and Cruz v. Ortiz, C No. 20- cv-00176. In the other five cases, the Court found that plaintiff had at least three cases dismissed 5 that count as “strikes”1 and had not demonstrated that he qualified for the imminent danger 6 exception. The Court therefore denied him leave to proceed in forma pauperis in these cases 7 pursuant to 28 U.S.C. § 1915(g). See Cruz v. Gutierrez, C No. 19-cv-004726 HSG; Cruz v. 8 Kumbat, C No. 19-cv-05825 HSG; Cruz v. Pierston, C No. 19-cv-08039 HSG; Cruz v. Ford, C 9 No. 19-7649; and Cruz v. Ortiz, C No. 20-cv-00176. Because plaintiff has suffered at least three 10 cases dismissed that count as “strikes,” pursuant to 28 U.S.C. § 1915(g), he may not proceed in 11 forma pauperis in this action unless he demonstrates that he is in imminent danger of serious 12 physical injury at the time he filed the complaint. 13 The complaint alleges that on December 11-12, 2018, defendants Pelican Bay State Prison 14 officers Tincher and Jarvis, in retaliation for plaintiff reporting serious employee misconduct, 15 repeatedly attempted to get plaintiff to either expose his genitals or rub his genitals through his 16 clothing in order to blackmail him or manipulate him so that he would be assaulted on the yard. 17 Plaintiff alleges that after he refused to follow their orders, defendants fomented lies against him 18 in an attempt to have him assaulted on the main yard by other inmates. Plaintiff also alleges that 19 defendants have continually sexually harassed him, verbally threatened him with physical injury, 20 and ordered other inmates to physically assault him, both prior to December 11-12, 2018, and 21 continuing to this day. Plaintiff states that he fears physical injury because of the ongoing 22 harassment and threats and other attempts to harm plaintiff. Plaintiff acknowledges that he has not 23 suffered any harm but states that this is only because he has brought these serious issues to the 24 25 1 The Court found that the following cases counted as strikes: (1) Trujillo v. Sherman, C No. 1:14- 26 cv-01401-BAM (PC), 2015 WL 13049186 (E.D. Cal. Apr. 24, 2015); (2) Cruz v. Ruiz, C No. 1:15-cv-00975-SAB-PC, 2016 WL 8999460 (E.D. Cal. Jan. 6, 2016); (3) Cruz v. Gomez, 2017 27 WL 1355872 (E.D. Cal. Feb. 3, 2017); (4) Trujillo v. Gomez, C No. 14-cv-01797 DAD DLB, 2016 1 attention of correctional officials who have higher authority. 2 The complaint alleges a past constitutional violation which caused plaintiff emotional 3 suffering, but no injury. The complaint also acknowledges that prison officials have successfully 4 || protected him from the alleged harm posed by plaintiffs. The complaint’s allegations do not 5 || plausibly allege that plaintiff faced imminent danger of serious physical injury on April 12, 2020, 6 the date he filed the complaint. Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) 7 (requiring plausible allegations of imminent danger of serious physical injury). 8 CONCLUSION 9 Accordingly, within twenty-eight (28) days of the date of this order, plaintiff shall show 10 || cause why his request for leave to proceed in forma pauperis should not be denied pursuant to the 11 three strikes provision set forth in 28 U.S.C. § 1915. Failure to respond in accordance with this 12 || order will result in dismissal of this action without further notice to plaintiff pursuant to Rule 5 13 41(b) of the Federal Rules of Civil Procedure for failure to comply with a court order. IT IS SO ORDERED. 3 15 || Dated: 4/28/2020 16 Aauprerd 8 bbl) HAYWOOD S. GILLIAM, JR. 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28