Cruz v. Davis ( 2022 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GUILLERMO TRUJILLO CRUZ, Case No. 22-cv-06219-HSG 8 Plaintiff, ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS; 9 v. REQUIRING PLAINTIFF TO PAY FILING FEE IN FULL; DENYING AS 10 DAVIS, et al., MOOT REQUEST FOR EXTENSION OF TIME 11 Defendants. Re: Dkt. Nos. 2, 3, 5 12 13 14 Plaintiff, an inmate at Pelican Bay State Prison (“PBSP”), filed this pro se civil rights 15 action pursuant to 42 U.S.C. § 1983 against PBSP prison officials Davis, Lopez, Austen, Johnson, 16 Thompson and Hamilton, on or about October 12, 2022. Dkt. No. 1; Dkt. No. 1-1 at 3. Plaintiff 17 also requested leave to proceed in forma pauperis. Dkt. No. 2. On October 31, 2022, the Court 18 ordered Plaintiff to show cause why he should not be denied leave to proceed in forma pauperis 19 pursuant to the three strikes provision set forth in 28 U.S.C. § 1915. Dkt. No. 4. Plaintiff filed his 20 response with the Court on November 17, 2022. Dkt. No. 6. The Court has carefully considered 21 the record and, for the reasons set forth below, DENIES Plaintiff leave to proceed in forma 22 pauperis pursuant to 28 U.S.C. § 1915(g), Dkt. No. 2, and requires Plaintiff to pay the filing fee in 23 full in order to proceed with this action. The Court DENIES the remaining motions as moot. Dkt. 24 Nos. 3, 5. 25 DISCUSSION 26 This action is governed by the Prison Litigation Reform Act of 1996 (“PLRA”) which was 27 enacted, and became effective, on April 26, 1996. The PLRA provides that a prisoner may not 1 prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought 2 an action . . . in a court of the United States that was dismissed on the grounds that it is frivolous, 3 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under 4 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 5 For purposes of a dismissal that may be counted under Section 1915(g), the Ninth Circuit 6 gives this guidance. The phrase “fails to state a claim on which relief may be granted” parallels 7 the language of Fed. R. Civ. P. 12(b)(6) and apparently means the same thing. Andrews v. King, 8 398 F.3d 1113, 1121 (9th Cir. 2005). A case “is frivolous if it is ‘of little weight or importance: 9 having no basis in law or fact.’” Id. (citation omitted). “A case is malicious if it was filed with 10 the ‘intention or desire to harm another.’” Id. (citation omitted). “Not all unsuccessful cases 11 qualify as a strike under § 1915(g). Rather, § 1915(g) should be used to deny a prisoner’s IFP 12 status only when, after careful evaluation of the order dismissing an action, and other relevant 13 information, the district court determines that the action was dismissed because it was frivolous, 14 malicious or failed to state a claim.” Id. at 1121. 15 The plain language of the imminent danger clause in Section 1915(g) indicates that 16 “imminent danger” is to be assessed at the time of filing of the complaint. See Andrews v. 17 Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (“Andrews II”). The conditions that existed at 18 some earlier or later time are not relevant. Id. at 1053 & n.5 (post-filing transfer of prisoner out of 19 prison at which danger allegedly existed may have made moot his request for injunctive relief 20 against alleged danger, but it does not affect Section 1915(g) analysis). The Court “should not 21 make an overly detailed inquiry into whether the allegations qualify for the exception.” Id. at 22 1055. It is sufficient if the complaint “makes a plausible allegation that the prisoner faced 23 ‘imminent danger of serious physical injury’ at the time of filing.” Id. 24 I. Background 25 On October 31, 2022, the Court ordered Plaintiff to show cause why his request for leave 26 to proceed in forma pauperis should not be denied, given that, in at least seven other cases, 27 1 Plaintiff had been denied leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g),1 2 and the complaint did not allege that Plaintiff was in imminent danger of serious physical injury. 3 Dkt. No. 4 at 2-5. The Court found that Plaintiff’s allegations that he was in imminent danger of 4 serious physical injury at the time he filed the complaint were fanciful and speculative: 5 Plaintiff alleges that he has demonstrated imminent danger of serious physical injury at the time he filed this complaint, October 21, 2022, because (1) Defendants have 6 threatened him daily with assault since December 2016; (2) Defendants acted on these threats by arranging to have him attacked on May 27, 2022; and (3) Defendants are still 7 threatening him daily with assault. 8 Plaintiff has not made a plausible claim that Defendants ordered the May 27, 2022 attack. The May 27, 2022 attack involved three inmates – inmates Robles and Lopez and 9 Plaintiff – and no correctional officers. Plaintiff relies solely on the following conclusory statements to establish that Defendants ordered the attack: Defendants are vengeful 10 because of Plaintiff’s grievances alleging misconduct by prison officials and Defendants threaten him daily with assault. Yet these conclusory statements are inconsistent with the 11 record. The alleged threats began in 2016, yet the only grievance in the record related to Defendants was filed on October 2021. And there were at least five years of verbal threats 12 that did not result in physical attack. There is also no specific evidence or allegation linking Defendants to inmates Robles and Lopez. 13 Moreover, Plaintiff’s allegation that Defendants conspired with other prison 14 officers to order the May 27, 2022 attack is suspect. In his other recently-filed lawsuits, Plaintiff has identified different prison officials as responsible for this attack and always 15 for the purpose of satisfying the “imminent danger of serious physical injury” requirement set forth in 28 U.S.C. § 1915(g). In other words, Plaintiff appears to use the May 27, 2022 16 assault to circumvent the three-strikes provision of 28 U.S.C. § 1915(g) by claiming that the named defendant(s) ordered the assault, even though the altercation involved only 17 inmates and there are no allegations explaining how inmates Robles and Lopez are linked to the named defendant(s). For example, in C No. 22-0670, Cruz v. Bedusa, Plaintiff 18 alleges that PBSP correctional officer Bedusa ordered the May 27, 2022 attack; in C No. 22-cv-4627 HSG, Cruz v. Valdez, et al., he alleges that PBSP correctional officers Valdez, 19 Chapa, and Declue ordered the May 27, 2022 attack; and in C No. 22-cv-4898 HSG, Cruz v. Simpson, Plaintiff alleges that PBSP correctional officer Simpson ordered the May 27, 20 21 1 Plaintiff was denied leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g) in the following cases: Cruz v. Gutierrez, C No. 19-cv-04726 HSG, Dkt. No. 15 (Jan. 16, 2020), Dkt. 22 No. 19 (Mar. 6, 2020) (revoking leave to proceed in forma pauperis); Cruz v. Kumbat, C No. 19- cv-05825 HSG, Dkt. No. 11 (Jan. 16, 2020), Dkt. No. 16 (Mar. 19, 2020) (revoking leave to 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 2022 attack. Plaintiff’s claim of imminent danger of serious physical injury from 1 Defendants at the time he filed the complaint is fanciful and speculative. 2 Dkt. No. 4 at 3-4. 3 II. Imminent Danger Exception 4 Plaintiff has not disputed that he has three strikes within the meaning of 42 U.S.C. 5 § 1915g. See Dkt. No. 6. He argues, however, that he was in imminent danger of serious physical 6 injury at the time he filed the complaint because (1) after Plaintiff returned to PBSP on October 7 18, 2021 and through May 27, 2022, defendants Davis, Lopez, Austen, Johnson, Thompson and 8 Hamilton retaliated against him for filing Grievance No. 178575 on December 4, 2021, by 9 threatening Plaintiff daily with being beaten or with being assigned a cellmate that would get 10 Plaintiff involved in a physical altercation; (2) Defendants caused Plaintiff to suffer “an adverse 11 action” when they used “‘anonymous resources’ to do their dirty work by intentionally setting 12 [Plaintiff] up to be attacked [on May 27, 2022];” and (3) on October 17, 2022, Defendants all 13 threatened Plaintiff with another assault and these threats continued through November 14, 2022, 14 the day Plaintiff prepared his response to the Order to Show Cause. Dkt. No. 6. 15 Plaintiff proffers the same conclusory and suspect allegations that he made in his 16 complaint and now conveniently adds the claim that these Defendants began to threaten him again 17 on the day he commenced this action. However, Plaintiff has not addressed the Court’s concerns 18 about the plausibility of his claim that Defendants are responsible for the May 27, 2022 attack. 19 And outside of Plaintiff’s unsupported and suspect claim that Defendants ordered the May 27, 20 2022 attack, Plaintiff’s only support for his claim that he faced imminent danger of serious 21 physical injury at the time he commenced this action are his allegations that, in late 2021, 22 Defendants sought to retaliate against him and that, on the day he commenced this action, 23 Defendants again began to threaten him daily with assault. Plaintiff’s claim that Defendants bear 24 retaliatory animus against him is suspect because the identified retaliatory behavior began in 25 October 2021 but the grievance that allegedly triggered the retaliation was filed afterwards, in 26 December 2021. Plaintiff’s claim that Defendants threatened him with assault on the day he 27 commenced this action is also suspect. Plaintiff appears to make this claim whenever asked to 1 other actions before the Court, when ordered to show cause why leave to proceed in forma 2 pauperis should not be denied, Plaintiff also alleges that the named defendants resumed 3 threatening him with assault on the very day he commenced an action against the named 4 defendants. See, e.g., C No. 22-cv-4627 HSG, Cruz v. Valdez, et al., Dkt. No. 6 (alleging that 5 defendants Valdez, Chapa and Declue threatened him with assault on October 31, 2022, the day he 6 commenced Valdez); C No. 22-cv-4898 HSG, Cruz v. Simpson, Dkt. No. 5 (alleging that 7 defendant Simpson threatened him on August 25, 2022, the day he commenced Simpson). 8 Moreover, even assuming arguendo that Defendants have been threatening Plaintiff with assault 9 since October 17, 2022, nothing in the record plausibly indicates that Defendants intend to carry 10 out their verbal threats. 11 The Court has considered Plaintiff’s litigation history, the allegations set forth in the 12 complaint, and Plaintiff’s response to the OSC. The Court finds that it would be speculative to 13 conclude from Plaintiff’s allegations that he faced imminent danger of serious physical injury at 14 the time this action was filed. Accordingly, pursuant to 28 U.S.C. § 1915(g), the Court DENIES 15 Plaintiff leave to proceed in forma pauperis. Andrews II, 493 F.3d at 1055 (imminent danger 16 exception applies if complaint “makes a plausible allegation that the prisoner faced ‘imminent 17 danger of serious physical injury’ at the time of filing.”). 18 CONCLUSION 19 For the reasons set forth above, the Court orders as follows. 20 1. The Court DENIES Plaintiff leave to proceed in forma pauperis pursuant to 28 21 U.S.C. § 1915(g). Dkt. No. 2. Plaintiff may proceed with this action only if he pays the $402 22 filing and administrative fee in full. Plaintiff must pay the full filing fee within twenty-eight (28) 23 days of the date of this order. If the full filing fee is not received by that date, the Court will 24 dismiss this action without prejudice to plaintiff re-filing upon payment of the full filing fee. 25 2. The Court DENIES as moot Plaintiff’s request that the Clerk of the Court answer 26 the complaint and provide Plaintiff with a docket number. Dkt. No. 3. Plaintiff has been provided 27 with a case number for this action. 1 response to the Court’s October 31, 2022 Order to Show Cause. Dkt. No. 5. Plaintiffs response 2 || was timely filed at Dkt. No. 6. 3 This order terminates Dkt. Nos. 2, 3, 5. 4 IT IS SO ORDERED. 5 || Dated: 12/16/2022 ° aAywoes S. GILLIAM, JR. □ 2 7 United States District Judge 8 9 10 11 a 12 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28