Cruz v. Escobar

Filing 18

ORDER REVOKING Plaintiff's In Forma Pauperis Status and Requiring Plaintiff to Pay Filing Fee in Full re 10 , 12 , signed by Magistrate Judge Erica P. Grosjean on 1/24/17. Filing Fee Due Within Thirty Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GUILLERMO TRUJILLO CRUZ,
Plaintiff,

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v.

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S. ESCOBAR,

ORDER REVOKING PLAINTIFF’S IN
FORMA PAUPERIS STATUS AND
REQUIRING PLAINTIFF TO PAY
FILING FEE IN FULL
(ECF NO. 12)

Defendant.

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1:16-cv-01770-EPG (PC)

I.

BACKGROUND
Guillermo Trujillo Cruz (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983.

Plaintiff filed the

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Complaint commencing this action on November 22, 2016. (ECF No. 1). On December 23,

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2016, Plaintiff filed an application to proceed in forma pauperis (ECF No. 10), which the Court

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granted (ECF No. 12).

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On December 7, 2016, Plaintiff consented to Magistrate Judge jurisdiction in this action

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pursuant to 28 U.S.C. § 636(c) (ECF No. 7), and no other parties have made an appearance.

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Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of

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California, the undersigned shall conduct any and all proceedings in the case until such time as

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reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

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II.

THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g)

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28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides

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that “[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner

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has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an

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action or appeal in a court of the United States that was dismissed on the grounds that it is

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frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the

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prisoner is under imminent danger of serious physical injury.”

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III.

ANALYSIS

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Plaintiff initiated this action on November 22, 2016. Before filing this case Plaintiff

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had four prior cases dismissed for failure to state a claim.1 Thus, Plaintiff had three or more

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cases that constituted strikes under the “three-strike” rule in 28 U.S.C. § 1915(g) before filing

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the present case. Therefore, Plaintiff is subject to the “three-strike” rule in 28 U.S.C. ' 1915(g)

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and is precluded from proceeding in forma pauperis unless Plaintiff was, at the time the

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Complaint was filed, under imminent danger of serious physical injury.

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The availability of the imminent danger exception turns on the conditions a prisoner

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faced at the time the complaint was filed, not at some earlier or later time. See Andrews v.

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Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). “[A]ssertions of imminent danger of less

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obviously injurious practices may be rejected as overly speculative or fanciful.” Id. at 1057

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n.11. Imminent danger of serious physical injury must be a real, present threat, not merely

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speculative or hypothetical. To meet his burden under § 1915(g), an inmate must provide

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“specific fact allegations of ongoing serious physical injury, or a pattern of misconduct

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evidencing the likelihood of imminent serious physical injury.” Martin v. Shelton, 319 F.3d

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1048, 1050 (8th Cir. 2003). “Vague and utterly conclusory assertions” of harm are insufficient.

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White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir. 1998). That is, the “imminent danger”

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The Court takes judicial notice of the following United States District Court cases: Trujillo v.
Sherman, Case No. 1:14-cv-01401-BAM (E.D. Cal) (dismissed on April 24, 2015, for failure to state a claim);
Trujillo v. Ruiz, et al., Case No. 1:14-cv-00975-SAB (E.D. Cal.) (dismissed on January 6, 2016, for failure to state
a claim); Trujillo v. Munoz, Case No 1:14-cv-00976-DLB (E.D. Cal.) (dismissed on May 11, 2016, for failure to
state a claim); and Trujillo v. Munoz, Case No. 1:14-cv-01215-SAB (E.D. Cal.) (dismissed on May 17, 2016, for
failure to state a claim).
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exception is available “for genuine emergencies,” where “time is pressing” and “a threat . . . is

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real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002).

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The Court has reviewed Plaintiff=s Complaint for this action and finds that Plaintiff does

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not meet the imminent danger exception. Plaintiff alleges that on September 17, 2015, he was

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assaulted by prison officials Jones and Cranmer. Plaintiff claims that the assault was in

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retaliation for filing numerous 602 grievances. Plaintiff alleges that all of the Facility B yard

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staff were making verbal threats toward Plaintiff that they wanted him assaulted on a daily

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basis, months before the first and second incident occurred. The Court screened Plaintiff’s

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Complaint on January 12, 2017. (ECF No. 15). The Court found that Plaintiff failed to state a

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claim against Defendant Escobar and dismissed the Complaint with leave to amend. (Id.).

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Accordingly, there is no complaint presently before this Court. Additionally, Plaintiff does not

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allege imminent danger, and does not allege specific facts that, if true, would show ongoing

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serious physical injury, or a pattern of misconduct evidencing the likelihood of imminent

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serious physical injury.

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The Court notes that Plaintiff filed this case using the name Guillermo Trujillo Cruz,

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instead of Guillermo Cruz Trujillo (the name Plaintiff used in the prior four cases, which were

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dismissed for failure to state a claim). The Court does not know which is accurate. However,

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the fact that Plaintiff filed this case using the last name Cruz, after having accrued three strikes

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using the last name Trujillo, has been noticed and is quite troubling.

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IV.

CONCLUSION AND RECOMMENDATIONS

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The Court finds that under 28 U.S.C. § 1915(g) Plaintiff may not proceed in forma

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pauperis in this action, and must submit the appropriate filing fee in order to proceed with this

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action. Accordingly, Plaintiff’s in forma pauperis status (ECF No. 12) will be revoked, and

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Plaintiff will be required to pay the $400.00 filing fee in full to proceed with this action.

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Failure to follow the directives in this order will result in dismissal of the case.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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Pursuant to 28 U.S.C. ' 1915(g), Plaintiff=s in forma pauperis status (ECF No.
12) is REVOKED;
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Plaintiff shall pay the $400.00 filing fee in full within 30 days of the date of
service of this order in order to proceed with this action; and

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Failure to pay the filing fee within 30 days of the date of service of this order
will result in dismissal of this action.

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IT IS SO ORDERED.
Dated:

January 24, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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