Cruz v. Simpson ( 2022 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GUILLERMO TRUJILLO CRUZ, Case No. 22-cv-04898-HSG 8 Plaintiff, ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS; 9 v. DENYING AS MOOT REQUEST FOR EXTENSION OF TIME; REQUIRING 10 R. SIMPSON, PLAINTIFF TO PAY FILING FEE IN FULL 11 Defendant. Re: Dkt. Nos. 2, 4 12 13 14 Plaintiff, an inmate at Pelican Bay State Prison, filed this pro se civil rights action pursuant 15 to 42 U.S.C. § 1983 on or about August 26, 2022. Dkt. No. 1. Plaintiff has also requested leave to 16 proceed in forma pauperis. Dkt. No. 2. On October 31, 2022, the Court ordered Plaintiff to show 17 cause why he should not be denied leave to proceed in forma pauperis pursuant to the three strikes 18 provision set forth in 28 U.S.C. § 1915. Dkt. No. 4. Plaintiff filed his response with the Court on 19 November 17, 2022. Dkt. No. 5. The Court has carefully considered the record and, for the 20 reasons set forth below, DENIES Plaintiff leave to proceed in forma pauperis pursuant to 28 21 U.S.C. § 1915(g) and requires Plaintiff to pay the filing fee in full in order to proceed with this 22 action. 23 DISCUSSION 24 This action is governed by the Prison Litigation Reform Act of 1996 (“PLRA”) which was 25 enacted, and became effective, on April 26, 1996. The PLRA provides that a prisoner may not 26 bring a civil action under 28 U.S.C. § 1915, i.e., may not proceed in forma pauperis, “if the 27 prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought 1 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under 2 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 3 For purposes of a dismissal that may be counted under Section 1915(g), the Ninth Circuit 4 gives this guidance. The phrase “fails to state a claim on which relief may be granted” parallels 5 the language of Fed. R. Civ. P. 12(b)(6) and apparently means the same thing. Andrews v. King, 6 398 F.3d 1113, 1121 (9th Cir. 2005). A case “is frivolous if it is ‘of little weight or importance: 7 having no basis in law or fact.’” Id. (citation omitted). “A case is malicious if it was filed with 8 the ‘intention or desire to harm another.’” Id. (citation omitted). “Not all unsuccessful cases 9 qualify as a strike under § 1915(g). Rather, § 1915(g) should be used to deny a prisoner’s IFP 10 status only when, after careful evaluation of the order dismissing an action, and other relevant 11 information, the district court determines that the action was dismissed because it was frivolous, 12 malicious or failed to state a claim.” Id. at 1121. 13 The plain language of the imminent danger clause in Section 1915(g) indicates that 14 “imminent danger” is to be assessed at the time of filing of the complaint. See Andrews v. 15 Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (“Andrews II”). The conditions that existed at 16 some earlier or later time are not relevant. Id. at 1053 & n.5 (post-filing transfer of prisoner out of 17 prison at which danger allegedly existed may have made moot his request for injunctive relief 18 against alleged danger, but it does not affect Section 1915(g) analysis). The Court “should not 19 make an overly detailed inquiry into whether the allegations qualify for the exception.” Id. at 20 1055. It is sufficient if the complaint “makes a plausible allegation that the prisoner faced 21 ‘imminent danger of serious physical injury’ at the time of filing.” Id. 22 I. Background 23 On October 31, 2022, the Court ordered Plaintiff to show cause why his request for leave 24 to proceed in forma pauperis should not be denied, given that, in at least seven other cases, 25 Plaintiff had been denied leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g),1 26 1 Plaintiff was denied leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g) in the 27 following cases: Cruz v. Gutierrez, C No. 19-cv-04726 HSG, Dkt. No. 15 (Jan. 16, 2020), Dkt. 1 and the complaint did not allege that Plaintiff was in imminent danger of serious physical injury. 2 Dkt. No. 6 at 2-6. The Court found that Plaintiff’s allegations that he was in imminent danger of 3 serious physical injury at the time he filed the complaint were fanciful and speculative: 4 Plaintiff alleges that he has demonstrated imminent danger of serious physical injury at the time he filed this complaint because he has alleged that: (1) on May 26, 2022, 5 he overhead defendant Simpson conspiring with others to have him assaulted; (2) he was assaulted on May 27, 2022 at defendant Simpson’s direction; (3) after the assault, 6 defendant Simpson threatened him with battery; and (4) although defendant Simpson no longer works at Facility B, he has directed his co-workers on Facility B to assault Plaintiff 7 or arrange for Plaintiff’s assault. These allegations do not support an inference that Plaintiff faced imminent danger of serious physical injury from defendant Simpson on 8 August 22, 2022, the date Plaintiff provided the complaint to prison authorities for mailing. Dkt. No. 1-2 at 2. Defendant Simpson no longer works on Facility B and Plaintiff has not 9 suffered any assault since May 27, 2022, despite his claim that defendant Simpson has directed his co-workers on Facility B to assault Plaintiff or arrange for Plaintiff’s assault. 10 Even if defendant Simpson is linked to the May 27, 2022 assault, [FN 2] there are no allegations from which it can be reasonably inferred that another assault orchestrated by 11 defendant Simpson was imminent on August 22, 2022, three months after the May 2022 assault. 12 FN 2: Plaintiff’s allegation that Defendants ordered the May 27, 2022 attack is 13 suspect. In his other recently-filed lawsuits, Plaintiff identifies different prison officials as responsible for this attack in his other recently-filed lawsuits and always 14 makes these allegations for the purpose of satisfying the “imminent danger of serious physical injury” requirement set forth in 28 U.S.C. § 1915(g). In other 15 words, Plaintiff appears to use the May 27, 2022 assault to circumvent the three- strikes provision of 28 U.S.C. § 1915(g) by claiming that the defendant(s) named in 16 the lawsuit ordered the assault, even though the altercation involved only inmates and there are no allegations explaining how inmates Robles and Lopez are linked to 17 the named defendant(s). For example, in C No. 22-0670, Cruz v. Bedusa, Plaintiff alleges that PBSP correctional officer Bedusa ordered the May 27, 2022 attack; in 18 C No. 22-cv-4627 HSG, Cruz v. Valdez, et al., Plaintiff alleges that PBSP correctional officer Valdez, Chapa and Declue ordered the May 27, 2022 attack; 19 and in C No. 22-cv-5556 HSG, Cruz v. Calderon, et al., he alleges that PBSP correctional officers Calderon, Hamilton, Ford, Nelson and Cena ordered the May 20 27, 2022 attack. 21 Dkt. No. 3 at 4-5. 22 23 proceed in forma pauperis); Cruz v. Pierston, C No. 19-cv-08039 HSG, Dkt. No. 8 (Jan. 16, 2020), Dkt. No. 14 (Mar. 9, 2020); Cruz v. Ford, C No. 19-7649, Dkt. No. 13 (Mar. 9, 2020) 24 (revoking leave to proceed in forma pauperis); Cruz v. Ortiz, C No. 20-cv-00176, Dkt. No. 15 (Jun. 22, 2020); Cruz v. Chandler, C No. 20-cv-3421, Dkt. No. 7 (Sept. 28, 2020); and Cruz v. 25 Bedusa, C No. 22-cv-00670, Dkt. No. 5 (Feb. 16, 2022). In these cases, the Court found that the following cases counted as strikes within the meaning of 28 U.S.C. § 1915(g): (1) Trujillo v. 26 Sherman, C No. 1:14-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 27 v. Gomez, 2017 WL 1355872 (E.D. Cal. Feb. 3, 2017); (4) Trujillo v. Gomez, C No. 14-cv-01797 1 II. Imminent Danger Exception 2 Plaintiff has not disputed that he has three strikes within the meaning of 42 U.S.C. 3 § 1915g. See Dkt. No. 5. He argues, however, that he was in imminent danger of serious physical 4 injury at the time he filed the complaint because (1) defendant Simpson threatened him with 5 assault on May 26 and 27, 2022; (2) Plaintiff was assaulted on May 27, 2022 and defendant 6 Simpson admitted to ordering the assault; (3) defendant Simpson has threatened to have Plaintiff 7 assaulted “in the near future;” and (4) on August 25, 2022, the day he provided his complaint to 8 correctional officials for mailing, defendant Simpson threatened him with assault “in the nature 9 future in retaliation and vengeance.” Dkt. No. 5 at 1-2. These are the same conclusory and 10 suspect allegations that Plaintiff makes in his complaint. Plaintiff has not addressed the Court’s 11 concerns about the plausibility of his claim that defendant Simpson is responsible for the May 27, 12 2022 attack. Outside of Plaintiff’s unsupported and suspect claim that defendant Simpson ordered 13 the May 27, 2022 attack, Plaintiff’s only support for his claim that he faced imminent danger of 14 serious physical injury at the time he commenced this action are his allegations that defendant 15 Simpson regularly threatens him with assault “in the near future.” Assuming arguendo that these 16 allegations are true, the record indicates that defendant Simpson’s verbal threats have not been 17 accompanied by any action to cause serious physical injury to Plaintiff. 18 The Court has considered Plaintiff’s litigation history and the allegations set forth in his 19 response to the OSC. The Court finds that it would be speculative to conclude from Plaintiff’s 20 allegations that he faced imminent danger of serious physical injury at the time this action was 21 filed. Accordingly, pursuant to 28 U.S.C. § 1915(g), the Court DENIES Plaintiff leave to proceed 22 in forma pauperis. Andrews II, 493 F.3d at 1055 (imminent danger exception applies if complaint 23 “makes a plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ 24 at the time of filing.”). 25 CONCLUSION 26 For the reasons set forth above, the Court orders as follows. 27 1. The Court DENIES Plaintiff leave to proceed in forma pauperis pursuant to 28 1 filing and administrative fee in full. Plaintiff must pay the full filing fee within twenty-eight (28) 2 || days of the date of this order. If the full filing fee is not received by that date, the Court will 3 dismiss this action without prejudice to plaintiff re-filing upon payment of the full filing fee. 4 2. The Court DENIES as moot Plaintiffs request for an extension of time to file his 5 || response to the Court’s October 31, 2022 Order to Show Cause. Dkt. No. 4. Plaintiff's response 6 || was timely filed at Dkt. No. 5. 7 This or der terminates Dkt. Nos. 2, 4. 8 IT IS SO ORDERED. 9 || Dated: 12/16/2022 10 Abppured 3 Mbt). HAYWOOD S. GILLIAM, JR. I United States District Judge 12 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28