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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GUILLERMO CRUZ TRUJILLO,
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Plaintiff,
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v.
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R. GONZALEZ-MORAN, et al.,
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Defendants.

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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.)

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Currently before the Court is Plaintiff’s motion for leave to proceed in forma pauperis, filed on

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January 17, 2017. (ECF No. 7). Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that “[i]n

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no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more

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prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of

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the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a

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claim upon which relief may be granted, unless the prisoner is under imminent danger of serious

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physical injury.”1

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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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The Court has reviewed Plaintiff’s complaint and his allegations do not satisfy the imminent

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danger exception to section 1915(g). Andrews v. Cervantes, 493 F.3d 1047, 1055-56 (9th Cir. 2007).

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Plaintiff is currently housed at Pelican Bay State Prison in Crescent City, California. He alleges that

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from March 26, 2015 through September 17, 2015, while he was housed at Kern Valley State Prison,

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the defendant correctional officers subject him to threats in retaliation for his reports of prison official

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misconduct, and on September 15, 2015, they assaulted him during afternoon yard at that institution.

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Plaintiff’s complaint concerns past events at an institution where he was no longer housed by

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the time his complaint was filed. Thus, although the allegations are grave, Plaintiff has not alleged any

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imminent danger of serious physical injury at the time of that filing. Therefore, Plaintiff has not

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satisfied the exception from the three strikes bar under 28 U.S.C. § 1915(g), and must pay the $400.00

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filing fee if he wishes to litigate this claim.

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Accordingly, the Court HEREBY ORDERS as follows:

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1.

Plaintiff’s motion for leave to proceed in forma pauperis (ECF No. 7) is DENIED;

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2.

This action is DISMISSED without prejudice to re-filing accompanied by the $400.00

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filing fee; and
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The Clerk of the Court is directed to terminate all pending motions and close this case.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

January 19, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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