Trujillo v. Gonzalez-Moran et al

Filing 8

ORDER DENYING 7 Plaintiff's Motion to Proceed In Forma Pauperis and ORDER DISMISSING ACTION Without Prejudice to Refiling With Submission of $400.00 Filing Fee signed by Magistrate Judge Barbara A. McAuliffe on 1/19/2017. CASE CLOSED. (Jessen, A)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 GUILLERMO CRUZ TRUJILLO, 9 Plaintiff, 10 v. 11 R. GONZALEZ-MORAN, et al., 12 Defendants. 13 14 15 16 ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:16-cv-01938-BAM ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS (ECF No. 7) ORDER DISMISSING ACTION WITHOUT PREJUDICE TO REFILING WITH SUBMISSION OF $400.00 FILING FEE Plaintiff Guillermo Cruz Trujillo, a state prisoner proceeding pro se, filed this civil action on December 29, 2016. (ECF No. 1.) Plaintiff consented to magistrate judge jurisdiction. (ECF No. 5.) 17 Currently before the Court is Plaintiff’s motion for leave to proceed in forma pauperis, filed on 18 January 17, 2017. (ECF No. 7). Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that “[i]n 19 no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more 20 prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of 21 the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a 22 claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 23 physical injury.”1 24 25 1 26 27 28 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). 1 1 The Court has reviewed Plaintiff’s complaint and his allegations do not satisfy the imminent 2 danger exception to section 1915(g). Andrews v. Cervantes, 493 F.3d 1047, 1055-56 (9th Cir. 2007). 3 Plaintiff is currently housed at Pelican Bay State Prison in Crescent City, California. He alleges that 4 from March 26, 2015 through September 17, 2015, while he was housed at Kern Valley State Prison, 5 the defendant correctional officers subject him to threats in retaliation for his reports of prison official 6 misconduct, and on September 15, 2015, they assaulted him during afternoon yard at that institution. 7 Plaintiff’s complaint concerns past events at an institution where he was no longer housed by 8 the time his complaint was filed. Thus, although the allegations are grave, Plaintiff has not alleged any 9 imminent danger of serious physical injury at the time of that filing. Therefore, Plaintiff has not 10 satisfied the exception from the three strikes bar under 28 U.S.C. § 1915(g), and must pay the $400.00 11 filing fee if he wishes to litigate this claim. 12 Accordingly, the Court HEREBY ORDERS as follows: 13 1. Plaintiff’s motion for leave to proceed in forma pauperis (ECF No. 7) is DENIED; 14 2. This action is DISMISSED without prejudice to re-filing accompanied by the $400.00 15 16 filing fee; and 3. The Clerk of the Court is directed to terminate all pending motions and close this case. 17 18 19 20 IT IS SO ORDERED. Dated: /s/ Barbara January 19, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 2

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