Trujillo Cruz v. Calderon ( 2022 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GUILLERMO TRUJILLO CRUZ, Case No. 22-cv-05556-HSG 8 Plaintiff, ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS; 9 v. DENYING AS MOOT REQUESTS FOR EXTENSIONS OF TIME; REQUIRING 10 CALDERON, et al., PLAINTIFF TO PAY FILING FEE IN FULL 11 Defendants. Re: Dkt. Nos. 4, 5, 7 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 September 29, 2022. Dkt. No. 1. Plaintiff has also requested 16 leave to proceed in forma pauperis. Dkt. No. 5. On October 31, 2022, the Court ordered Plaintiff 17 to show cause why he should not be denied leave to proceed in forma pauperis pursuant to the 18 three strikes provision set forth in 28 U.S.C. § 1915. Dkt. No. 6. Plaintiff filed his response with 19 the Court on November 16, 2022. Dkt. No. 8. The Court has carefully considered the record and, 20 for the reasons set forth below, DENIES Plaintiff leave to proceed in forma pauperis pursuant to 21 28 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. In relevant part, the Court found that Plaintiff’s allegations that he was in 3 imminent danger of serious physical injury at the time he filed the complaint were fanciful and 4 speculative: 5 Plaintiff alleges that he has demonstrated imminent danger of serious physical injury at the time he filed this complaint because Defendants threaten him daily with 6 assault, and these threats are credible because (1) Defendants seek to retaliate against him for complaints that he has previously filed against them; and (2) Defendants have 7 previously acted on their threat when they conspired with anonymous resources and had him assaulted on May 27, 2022, despite not being staffed on Facility B that day. See 8 generally Dkt. No. 1. Plaintiff has not made a plausible claim that Defendants ordered the May 27, 2022 9 attack. The May 27, 2022 attack involved three inmates – inmates Robles and Lopez and Plaintiff – and no correctional officers. Defendants Case, Nelson, Ford, and Calderon had 10 permanent assignments at other yards at the time of the attack, and no defendant was present at the time of the attack. Plaintiff relies solely on the following conclusory 11 statements to establish that Defendants ordered the attack: Defendants were motivated by vengeance for grievances filed by Plaintiff and Defendants’ transfer away from Facility B 12 Yard prior to the attack was an attempt to hide their involvement in the attack. However, Plaintiff provides no specific evidence or allegation to support these conclusory 13 statements. In addition, the grievances were filed and resolved two to three years prior to the assault, making it unlikely that Defendants were motivated by these grievances. It is 14 also unclear why Defendants would conspire together. There is no grievance naming all these defendants and the allegations in the grievances are distinct. 15 Moreover, Plaintiff’s allegation that Defendants conspired with other prison officers to order the May 27, 2022 attack is suspect. In his other recently-filed lawsuits, 16 Plaintiff has identified different prison officials as responsible for this attack and always for the purpose of satisfying the “imminent danger of serious physical injury” requirement 17 set forth in 28 U.S.C. § 1915(g). In other 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 18 the named defendant(s) ordered the assault, even though the altercation involved only inmates and there are no allegations explaining how inmates Robles and Lopez are linked 19 to 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 C No. 20 22-cv-4627 HSG, Cruz v. Valdez, et al., he alleges that PBSP correctional officers Valdez, Chapa, and Declue ordered the May 27, 2022 attack; and in C No. 22-cv-4898 HSG, Cruz 21 v. Simpson, Plaintiff alleges that PBSP correctional officer Simpson ordered the May 27, 2022 attack. 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 Dkt. No. 4 at 3. 2 II. Imminent Danger Exception 3 Plaintiff has not disputed that he has three strikes within the meaning of 42 U.S.C. 4 § 1915g. See Dkt. No. 8. He argues, however, that he was in imminent danger of serious physical 5 injury at the time he filed the complaint because the assault he suffered on May 27, 2022 was 6 ordered by Defendants and because on September 23, 2022, the day he provided his complaint to 7 correctional officials for mailing, Defendants again threatened him with assault. Dkt. No. 8 at 1-2. 8 Plaintiff does not allege any facts to support the allegation that Defendants ordered the May 27, 9 2022 assault. And, as discussed in the Court’s October 31, 2022 Order to Show Cause, Plaintiff’s 10 allegation that Defendants conspired with other prison officers to order the May 27, 2022 attack is 11 suspect because (1) the altercation involved only inmates and there are no allegations explaining 12 how inmates Robles and Lopez are linked to Defendants, and (2) in his other lawsuits, Plaintiff 13 identifies other prison officials as responsible for this attack and always for the purpose of 14 satisfying the “imminent danger of serious physical injury” requirement set forth in 28 U.S.C. § 15 1915(g). Outside of Plaintiff’s unsupported and suspect claim that Defendants ordered the May 16 27, 2022 attack, Plaintiff’s only support for his claim that he faced imminent danger of serious 17 physical injury at the time he commenced this action are his allegation in the complaint that 18 Defendants threaten him daily with assault and his allegation in the response to the Order to Show 19 Cause that Defendants threatened him with assault on September 23, 2022. Assuming arguendo 20 that these allegations are true, Defendants’ verbal threats have not been accompanied by any 21 action to cause serious physical injury to Plaintiff. 22 The Court has considered Plaintiff’s litigation history and the allegations set forth in his 23 response to the OSC. The Court finds that it would be speculative to conclude that Plaintiff faced 24 imminent danger of serious physical injury at the time this action was filed based on Plaintiff’s 25 allegations. Accordingly, pursuant to 28 U.S.C. § 1915(g), the Court DENIES Plaintiff leave to 26 proceed in forma pauperis. Andrews II, 493 F.3d at 1055 (imminent danger exception applies if 27 complaint “makes a plausible allegation that the prisoner faced ‘imminent danger of serious 1 physical injury’ at the time of filing.”’). 2 CONCLUSION 3 For the reasons set forth above, the Court orders as follows. 4 1. The Court DENIES Plaintiff leave to proceed in forma pauperis pursuant to 28 5 || U.S.C. § 1915(g). Dkt. No. 5. Plaintiff may proceed with this action only if he pays the $402 6 || filing and administrative fee in full. Plaintiff must pay the full filing fee within twenty-eight (28) 7 || days of the date of this order. If the full filing fee is not received by that date, the Court will 8 dismiss this action without prejudice to plaintiff re-filing upon payment of the full filing fee. 9 2. The Court DENIES as moot Plaintiff's request for an extension of time to file his 10 application for leave to proceed in forma pauperis. Dkt. No. 4. Plaintiff's application for leave to 11 proceed in forma pauperis was timely filed. Dkt. No. 5. 12 3. The Court DENIES as moot Plaintiff's request for an extension of time to file his 5 13 || response to the Court’s October 31, 2022 Order to Show Cause. Dkt. No. 7. Plaintiff's response 14 || was timely filed at Dkt. No. 8. 3 15 This order terminates Dkt. Nos. 4, 5, 7. a 16 IT IS SO ORDERED. 17 || Dated: 12/16/2022 18 Aleiperrd 5 Mbt □□□ HAYWOOD S. GILLIAM, JR. 19 United States District Judge 20 21 22 23 24 25 26 27 28